International Law Studies
Volume 88
Non-International Armed Conflict in the Twenty-first Century
Kenneth Watkin and Andrew J. Norris
Editors
111 --Ilp^
v^- ""''-
Naval War College
Newport, Rhode Island
2012
IN If RNATIONAL LAW STUDIES SERIES
PRESIDENT, NAVAJ WAR COLLEGE
Rear Admiral John N. ( hristenson, USN
PROVOST, NAVAL WAR COLLEGE
Ambassador Marv Ann Peters (R<
1 >I AN. < 1 NTER FOR NAVAL WARFARE
STUDIES
Professor Robert Rubel
(I (AIRMAN, INTERNATIONAL LAW
DEPARTMENT
Professor Michael N. Schmitt
CHARLES H. STOCKTON CHAIR OF
INTERNATIONAL LAW
Professor Kenneth Watkin
INTERNATIONAL LAW DEPARTMENT
Colonel Richard W. Rousseau, JA, USA
Professor Dennis Mandsager
( 'aptain Andrew J. Norris, USCG
Commander James C. Kraska, JAGC, USN
Lieutenant Colonel George Cadwalader, USMC
Major Matthew R. Hover, JA, USA
COMMANDING OFFICER, NAVAL WAR
COLLEGE, RESERVE UNIT (LAW)
Captain Kevin M. Kelly, JAGC, USN
EDITORIAL OFFICE
International Law Studies
International Law Department
Naval War College (36)
686 Cushing Road
Newport, RI 02841-1207
Telephone: +1-401-841-4949
Fax:+1-401-841-3989
DSN: 841-4949
E-mail: ILD@usnwc.edu
Website: http://www.usnwc.edu/ild
The International I aw Studies ("Blue Book") series
was initiated by the Naval War College in 1901 to
publish essays, treatises and articles that contribute
to the broader understanding of international law .
OPNAVINST 5450.207 (series) formally tasks the
Naval War College with publishing the "Blue Book"
series. The thoughts and opinions expressed in this
publication are those of the authors and are not
necessarily those of the U.S. government, the U.S. De-
partment of the Navy or the Naval War College.
Distribution
This series is not published on a calendar basis but
upon the availability of appropriate topics and au-
thors. Distribution is limited generally to select U.S.
government officials and agencies. Distribution is
also made through the Federal Depository Library
Program by the U.S. Government Printing Office.
Copies of this and other selected editions of the In-
ternational Law Studies series may also be obtained
commercially from William S. Hein 8c Co., Inc. Elec-
tronic access to individual articles published in the
series is available through LexisNexis. This does not
constitute government endorsement of either Wil-
liam S. Hein 8c Co., Inc. or LexisNexis as a commer-
cial source and no official endorsement is intended
or implied.
Electronic copies of this volume and other selected vol-
umes may be located at the following website: http://
www.usnwc.edu/Publications/Studies-Series.aspx.
Permissions
Reproduction and reprinting are subject to the Copy-
right Act of 1976 and applicable treaties of the United
States. To obtain permission to reproduce material
bearing a copyright notice, or to reproduce any mate-
rial for commercial purposes, contact the Editorial
Office for each use. Material not bearing a copyright
notice may be freely reproduced for academic or other
non-commercial use; however, it is requested that the
author and the International Law Studies series be
credited and that the editor be informed.
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: http://bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800
Fax:(202)512-2104 Mail: Stop IDCC, Washington, DC 20402-0001
ISBN 978-1-935352-05-1
International Law Studies
Volume 88
Library of Congress Cataloging-in-Publication Data
Non-international armed conflict in the twenty-first century / Kenneth Watkin
and Andrew J. Norris, Editors.
p. cm. — (International law studies ; 88) Includes index.
ISBN 978-1-935352-05-1 (hard cover)
1. War (International law) 2. Combatants and noncombatants (International
law) 3. Civil war. 4. Humanitarian law. I. Watkin, Kenneth. II. Norris, Andrew J.
KZ6385.N66 2012
341.6'8— dc23
2012023820
IN MEMORIAM
This book is dedicated to the memory of Professor Leslie C. Green ( 1 920-20 1 1 ) —
soldier, scholar of international law, independent thinker, mentor to many, dear
friend, loving husband and father, a man who loved life and lived it with grace, dignity
and active intellect to the very end.
Table of Contents
Non-International Armed Conflict in the
Twenty-first Century
Foreword xi
Introduction xiii
Preface xvii
Part I: Opening Address
I "Small Wars": The Legal Challenges
Kenneth Watkin 3
Part II: Overview: The Law in Non-International Armed Conflicts
II Will-o'-the-Wisp? The Search for Law in Non-International
Armed Conflicts
John F. Murphy 15
Part III: Type of Non-International Armed Conflicts and the
Applicable Law
III Defining Non-International Armed Conflict:
A Historically Difficult Task
David E. Graham 43
IV Self-defense Targeting: Blurring the Line between the Jus ad Bellum
\ and the Jus in Bello
Geoffrey S. Corn 57
V War and Peace: Where Is the Divide?
Charles Garraway 93
Part IV: Legal Status of the actors in
Non-International Armed Conflicts
VI The Status of Opposition Fighters in a Non-International
Armed Conflict
Michael N. Schmitt 119
VII Present and Future Conceptions of the Status of Government
Forces in Non-International Armed Conflict
Sean Watts 145
VIII Toward a Limited Consensus on the Loss of Civilian Immunity
in Non-International Armed Conflict: Making Progress
through Practice
Stephen Pomper 181
Part V: Means and Methods in Non-International Armed Conflicts
IX Differences in the Law of Weaponry
When Applied to Non-International Armed Conflicts
William H. Boothby 197
X Methods and Means of Naval Warfare in
Non-International Armed Conflicts
Wolff Heintschel von Heinegg 211
XI Perfidy in Non-International Armed Conflicts
Richard B. Jackson 237
Part VI: Recent and Ongoing Non-International Armed Conflicts
XII Non-International Armed Conflicts in the Philippines
Raymundo B. Ferrer and Randolph G. Cabangbang 263
XIII Twenty- First-Century Challenges:
The Use of Military Forces to Combat Criminal Threats
Juan Carlos Gomez 279
vin
XIV An Australian Perspective on Non-International Armed Conflict:
Afghanistan and East Timor
Rob McLaughlin 293
Part VII: Detention in Non-International Armed conflicts
XV Detention of Terrorists in the Twenty- first Century
William K. Lietzau 323
XVI Detention in Non-International Armed Conflicts
KnutDormann 347
Part VIII: Enforcement in Non-International Armed Conflicts
XVII International Enforcement in Non-International Armed Conflict:
Searching for Synergy among Legal Regimes in the Case of Libya
John Cerone 369
Part IX: Closing Address
XVIII Concluding Remarks on Non-International Armed Conflicts
Yoram Dinstein 399
Appendix — Contributors 425
Index 435
Previous "Blue Books" 449
IX
Foreword
The historic International Law Studies ("Blue Book") series was initiated by
the Naval War College in 1901 to publish essays, treatises and articles that
contribute to the broader understanding of international law. This, the eighty-
eighth volume of the "Blue Book" series, is a compilation of scholarly papers and
remarks derived from the proceedings of a conference hosted at the Naval War
College on June 21-23, 2011 entitled "Non-International Armed Conflict in the
21st Century."
The purpose of the June 2011 International Law Conference was to examine
the legal issues surrounding non-international armed conflict (NIAC) in the
modern era. To this end, renowned international academics and legal advisers,
both military and civilian, representing military, diplomatic, non-governmental
and academic institutions from the global community, were invited to the War
College to analyze a variety of legal topics related to NIAC. Specifically, the panel-
ists undertook an examination of the types of NIACs and the law applicable to
each; the legal statuses of actors in NIAC; means and methods of warfare in
NIAC; recent and ongoing NIACs; detention in NIAC; and enforcement of inter-
national law in NIAC. In addition, the Honorable Harold H. Koh, Legal Adviser
of the U.S. Department of State, presented a luncheon address at the Naval Sta-
tion Newport Officers' Club on the second day of the conference.
The distinguished panelists were invited to contribute articles to this volume to
further develop their thoughts offered at the conference, and this "Blue Book" is
largely comprised of these articles. Readers and researchers will find within this
volume a detailed study of the law pertaining to non-international armed conflicts
as it is interpreted and applied in the post-September 1 1 world, and its effect on
State actions, particularly military operations.
The conference and the "Blue Book" were made possible with generous sup-
port from the Naval War College Foundation, the Israel Yearbook on Human
Rights^the International Institute of Humanitarian Law, and the Lieber Society
on the Law of Armed Conflict, American Society of International Law.
On behalf of the Secretary of the Navy, the Chief of Naval Operations and
the Commandant of the Marine Corps, I extend our thanks and gratitude to
all the participants, contributing authors and editors for their invaluable contri-
butions to this project and to the future understanding of the law applicable in
non-international armed conflicts, the predominant form of warfare during the
last several decades and the type of conflicts in which military forces are most
likely to be engaged in the twenty-first century.
JOHN N. CHRISTENSON
Rear Admiral, U.S. Navy
President, Naval War College
xn
Introduction
During the past half century, non-international armed conflicts have far
outnumbered those that are international in character. Indeed, as the con-
ference that provided the basis for this volume was underway, the United States
was engaged with its NATO allies in a non-international armed conflict in Afghan-
istan and was winding down its long participation in one in Iraq. The nation was
also "at war" with various transnational terrorist groups in what many characterize
as non-international armed conflict.
Yet, the lex scripta governing international armed conflict dwarfs that address-
ing non-international armed conflict. Moreover, although international tribunals
have handled many cases involving the latter, their decisions often prove contro-
versial, especially when applying the law of international armed conflict to non-
international conflicts. Unfortunately, even the academic community pays less
attention to the law of non-international armed conflict than merited by its legal
complexity and the frequency and human consequences of the conflicts to which
it applies.
This reality is unsurprising. International armed conflict self- evidently affects
international stability. As history has demonstrated time and again, the risks of
escalation and of spread are high whenever such conflicts occur. These and other
factors motivate the members of the international community to agree upon
norms limiting the effects of State-on-State conflict lest they find themselves in-
volved therein. In doing so, States not only accept limitations on their battlefield
actions, but also secure protection for, inter alia> their civilians, civilian property
and soldiers hors de combat. The key to the system is the reciprocity inherent in the
treaty and customary law regimes that encompass opposing belligerents. Since the
law of international armed conflict is more robust than its non-international coun-
terpart, so too is the attention paid it.
Non-international armed conflict is of a fundamentally different nature. In
most cases, States are facing organized groups of lawbreakers from whom reciproc-
ity cannot be expected. Therefore, there is often little incentive for States to limit
their scope of action by agreeing to legal norms with which only they will abide.
Moreover, as the conflict is "internal," the risk of spread is limited, while the in-
volvement of other States is a matter of their discretion.
However, the context in which non-international armed conflict occurs is un-
dergoing transformation. Transnational terrorism has become a globally pervasive
Introduction
phenomenon, one that the international community seems increasingly willing to
classify as non-international, at least to the extent it rises to the level of "armed
conflict" as a matter of law. Further, as illustrated by the conflicts in the Balkans,
Afghanistan and the Great Lakes region of Africa, the likelihood of spillover into
neighboring countries is very real, especially when a conflict is ethnically or reli-
giously based or when adjacent territory is poorly governed. And the rise of crimi-
nal groups with capabilities equaling those of government forces, as in Colombia
and Mexico, raises the question of whether the hostilities they engage in qualify as
armed conflict.
The International Law Department of the Naval War College, long noted for
exploring new legal challenges in its annual conferences, accordingly decided that
a closer examination of the law governing non-international armed conflict was
opportune. Held in June 201 1, the resulting conference brought together many of
the key legal practitioners and scholars in the field to consider both the state of the
law and where it might be headed. Certain of the participants were invited to
expand on their presentations in this volume, the eighty-eighth in the Naval War
College's International Law Studies ("Blue Books") series. It delves into such com-
plicated topics as the scope of non-international armed conflict, the legal status of
actors, specific limitations on methods and means of warfare, detention and en-
forcement. The volume also offers several firsthand descriptions of particular
non-international armed conflicts. Hopefully, the various contributions will assist
those tasked with providing legal advice during future non-international armed
conflicts, as well as make a measurable contribution to the scholarship on the
subject.
Appreciation is owed to many who made the conference and this volume of the
"Blue Books" possible. Rear Admiral John Christenson, President of the Naval
War College, and Ambassador Mary Ann Peters, its Provost, provide the leadership
that enables the International Law Department to undertake these cutting-edge
studies. Professor Robert "Barney" Rubel, Dean of the Center for Naval Warfare
Studies, consistently affords the International Law Department the material sup-
port necessary to engage in meaningful research, as well as the vision that under-
girds all of its activities. Professor Dennis Mandsager, former Chairman of the
International Law Department, was at the helm as the Department developed the
topic and executed the conference. Lieutenant Colonel George Cadwalader ably
served as Conference Director, an oft-thankless duty, but one that is the key to suc-
cess. Finally, Brigadier General Kenneth Watkin, Canadian Forces (Ret.), the War
College's 201 1-12 Stockton Professor of International Law, and Captain Andrew
Norris, U.S. Coast Guard, edited this important volume with substantive aplomb
and editorial finesse. They are to be congratulated.
xiv
Introduction
The Naval War College has engaged in international law study and writing since
the late nineteenth century. Indeed, the first volume of the "Blue Book" series was
authored in 1901 by Professor John Bassett Moore, who would go on to serve as the
first U.S. judge on the Permanent Court of International Justice. It is our commit-
ment to continue this proud tradition in the years to come.
PROFESSOR MICHAEL N. SCHMITT
Chairman, International Law Department
United States Naval War College
xv
Preface
From June 21 to 23, 201 1, the U.S. Naval War College hosted distinguished in-
ternational scholars and practitioners, both military and civilian, repre-
senting government and academic institutions, to participate in a conference
examining the evolving law in non-international armed conflict (NIAC) in the
twenty- first century. Panelists discussed their views on how the law will develop as
the world continues to struggle with the changing nature of the threats to national
and international security posed by failed and failing States, insurgencies, and
transnational criminal and terrorist organizations. The conference featured open-
ing, luncheon and closing addresses, as well as six panel discussions.
The conference summary that follows was prepared by Commander Christian
P. Fleming, JAGC, U.S. Navy, a member of the Navy Reserve unit that supports the
Naval War College's International Law Department. The summary recapitulates
the highlights of each conference speaker's presentation. As co-editors, we are
deeply indebted to Commander Fleming for his attention to detail and assistance
in facilitating the publication of this "Blue Book." We would also be remiss if we
did not thank Captain Ralph Thomas, JAGC, U.S. Navy (Ret.), for his outstanding
support and dedication in editing the submissions for this volume of the Interna-
tional Law Studies series. We also extend our sincere appreciation to Susan Meyer
of the Naval War College's Desktop Publishing Division for expertly preparing the
page proofs. Additionally, we would like to thank Albert Fassbender and Shannon
Cole for their excellent work in proofreading the conference papers. The quality of
this volume is a reflection of their professionalism and outstanding expertise.
This "Blue Book" would not have come to fruition had it not been for the enor-
mously successful conference made possible in large measure by the conference
committee under the leadership of Lieutenant Colonel George Cadwalader, U.S.
Marine Corps* working with Mrs. Jayne Van Petten of the International Law De-
partment, and the support provided by the Naval War College Foundation, the In-
ternational Institute of Humanitarian Law, the Lieber Society on the Law of Armed
Conflict (American Society of International Law) and the Israel Yearbook on Hu-
man Rights. We thank these individuals and organizations for their enduring sup-
port and generosity.
We hope that the thought-provoking articles published in this "Blue Book" will
add to — and help shape — the debate on the multiple complex emerging legal is-
sues presented by the changing character of war. The insights offered to legal
Preface
practitioners and scholars should assist them as they address these and other issues
that may evolve in future conflicts.
Opening Address
Professor Ken W'atkin delivered the opening address. After introductory remarks,
Professor \\ atkin began his discussion of law in NIAC by quoting Colonel
Caldwell, who in 1906 defined a form of NIAC known as "small wars" as being
"campaigns undertaken to suppress rebellion and guerilla warfare in all parts of
the world where organized armies are struggling against opponents who will not
meet them in the open field." The 1940 Small Wars Manual of the U.S. Marine
Corps indicated that "small wars represent the normal and frequent operations of
the Marine Corps."
Because States have been hostile to clarifying the law, there has been limited suc-
cess in articulating the law of NIAC. The concern is that non-State actors will be
given legitimacy. Given the lack of consensus on what law applies to small war, a di-
alogue has been left open as to how and to what degree human rights law governs
the use of force, the treatment of detainees and the accountability process in
NIACs. Gaps remain and the law governing NIAC needs to be clarified for a num-
ber of reasons.
First, NIACs have been and will remain the dominant form of warfare. NIACs
will not disappear and pure international wars are becoming rare. International
armed conflicts (IACs) can change to NIACs overnight. This occurred in Afghani-
stan. Did troops on the ground notice the change? Did the legal advice change? As a
result, for most practitioners the key question to be asked is whether there is an
armed conflict rather than whether it is IAC or NIAC. Ironically, the Lieber Code,
written during the American Civil War, a NIAC, was a starting point for codifying
rules in an armed conflict. Unfortunately, the law applied in NIACs has become
muddier since then.
Second, the lack of clarity regarding the law of NIAC can have a profound and
sometimes negative effect not only on the victims of conflict, but also on States in
terms of whether their actions are viewed as being legitimate. For example, in post-
9/1 1 detainee operations, the dialogue would have been much different if there had
been greater clarity in the law. An application of the policy of treating captured per-
sonnel under prisoner of war standards, without providing that status, or as secu-
rity detainees under Geneva Convention IV could have been a practical, defensible
and ultimately helpful approach. However, even today, an internationally agreed-
upon framework governing detainees in NIAC is lacking.
xvi n
Kenneth Watkin and Andrew J. Norris
Third, there is a belief that the law applicable to NIAC has no real relevance to
conflicts between States. However, there can be significant cross-pollination of le-
gal issues, such as when dealing with an insurgency during belligerent occupation.
Finally, the unwillingness of States to clarify what law applies to NIAC has nega-
tively impacted their ability to influence how that law is being shaped. Gaps, both
real and perceived, are being filled by restatements and manuals of international
organizations instead of by States. One example is the International Committee of
the Red Cross's 2009 Interpretive Guidance on the Notion of Direct Participation in
Hostilities, which deals with an issue that States appear to have been either unwill-
ing or unable to address. The Guidance is representative of a trend suggesting that
States should be held to a higher standard than their non-State opponents. Adding
new inequity to the existing law is not likely to aid in reaching consensus among
such significant stakeholders in international law as States.
At the same time, States cannot complain about new manuals if they do not get
fully engaged in the processes being used to clarify the law. Civilians must be pro-
tected and the question is the degree to which States want to influence that process.
Panel I: Types ofNIACs and Applicable Law
Panel I, moderated by Commander James Kraska, JAGC, U.S. Navy, of the Naval
War College's International Law Department, consisted of Mr. David Graham of
the U.S. Army's Judge Advocate General's Legal Center and School, Professor
Geoffrey Corn of South Texas College of Law, Professor Charles Garraway of the
Royal Institute of International Affairs (Chatham House) and Mr. Karl Chang of
the U.S. Department of Defense Office of General Counsel.
Mr. Graham established the framework for the discussion by posing these ques-
tions: How do we recognize a NIAC? Are there different types of NIAC? How does
the United States decide whether a NIAC exists or not? Mr. Graham commented
that the law of armed conflict (LOAC) provides no definition of NIAC, nor does
Common Article 3 of the Geneva Conventions of 1949. It is not clear what level of
violence must exist and how protracted that violence needs to be for there to be a
NIAC. States have been reluctant to recognize NIACs within their own borders for
fear of legitimizing belligerent groups. Additional Protocol I to the 1949 Geneva
Conventions does not aid in defining NIAC; Additional Protocol II (AP II) nar-
rows the number ofNIACs to which it would apply. The U.S. practice would ap-
pear to be that of making no official determination as to whether a NIAC exists,
but, instead, to state that all U.S. personnel involved in a conflict will comply with
LOAC, regardless of how such a conflict might be characterized. While perhaps
self-serving, this is a practical approach with a proven track record.
xix
Preface
Professor Corn focused on the issue of willful blindness in conflict determina-
tion and why this is a dangerous approach. When States invoke powers under
LOAC — namely, to kill and detain — then States should be estopped from neglect-
ing to provide protections under Common Article 3. Said differently, if a State is
going to use the tools of war, then it must be bound by the rules of war. When a
State enters an armed conflict, it cannot label it as a NIAC or IAC to game the system.
Turning to the U.S. conflict against al Qaeda, Professor Corn believes the Bush ad-
ministration attempted to use a gap in the law to justify an exception to Common
Article 3. The United States attempted to use the inherent right of self-defense to
justify the use of force, but pretended to not need to address jus in hello consider-
ations. There was willful blindness to suggest that when invoking self-defense, the
question of the legal framework governing the conflict did not have to be
addressed.
Professor Garraway spoke from the European standpoint, and addressed the
border between law enforcement and NIAC. Prior to 1949, there was either war or
peace. In 1949, everything changed, and the spectrum of violence over the last fifty
to sixty years has been like a rainbow, with difficulty in determining where the col-
ors merge. The main issue for many years was the line between NIAC and IAC, but
the underlying problem is determining the line between law enforcement and
NIAC. Human rights law and LOAC are reasonably compatible insofar as "prohi-
bitions" are concerned. The problem comes with the "permissions" inherent in
"Hague law" on the conduct of hostilities. The challenge is that if human rights law
and LOAC are not to collide, there need to be compromises where they differ, such
as in targeting. There is a need to know what law applies in which circumstances.
The answer might lie in the intensity of the violence. Where the intensity is similar
to IAC, LOAC has priority; where the level is less, human rights law has priority.
Mr. Chang observed that people are troubled by a dearth of law pertaining to
NIAC. He argued that attempts to fill this perceived void by drawing from human
rights law or from law relating to IAC were unpersuasive and often an exercise in
applying law to situations for which it was not intended. Instead, Mr. Chang pro-
posed that the law of neutrality, which governs the relations between belligerents
and neutrals, gave principled limits on transnational NIACs. In IAC, we know
whom we are fighting and where we want to fight. But in transnational NIAC, the
fighting often takes place in neutral or non-belligerent States against citizens of
such States. The framework of neutrality law is needed to determine when persons
have forfeited their neutral immunity and acquired enemy status. Similarly, neu-
trality law is needed to determine where the State may use force, i.e., when other
States are unable or unwilling to address threats emanating from their territories.
xx
Kenneth Watkin and Andrew J. Norris
Panel II: Legal Status of Actors in NIAC
The International Law Department's Commander Andrew Norris, U.S. Coast
Guard, moderated this panel, which consisted of Durham University professor
Michael Schmitt, Creighton University School of Law professor Sean Watts and
Mr. Stephen Pomper of the U.S. Department of State. The panel delved into the legal
status of actors in NIAC, focusing on the categorization of those fighting for and
against the State. Mr. Pomper commented on various U.S. legal policy positions re-
garding NIAC.
Professor Schmitt discussed the law pertaining to opposition forces in NIAC,
noting that treaty law directly on point is sparse. A threshold issue is determining
whether the persons are actually members of the opposition or merely individual
criminals or members of criminal gangs taking advantage of the instability that ex-
ists during conflict. The latter cannot be parties to the conflict unless they are act-
ing in support of rebel forces, and operations conducted against them are governed
by domestic and human rights law. Professor Schmitt cautioned, however, that
there is a possible change in the wind for well- organized armed criminal gangs
competing with the State for control and authority over territory when the State
must resort to the military in response. As to opposition forces in a NIAC, the easi-
est case is that of dissident armed forces, which are clearly targetable at all times.
Other groups must display some level of structure and coordination and engage in
"armed" actions (or support thereof) against the State before attaining the status of
an "organized armed group," that is, a party to the conflict and therefore subject to
targeting as such. Individuals who act against the State without membership in an
organized armed group may qualify as "direct participants in hostilities" depend-
ing on the nature of their activities. When they qualify, they become targetable for
such time as they participate in the conflict. Professor Schmitt argued that if they
engage in recurring acts of hostility, their targetability extends throughout the
period of the acts.
Professor Watts addressed the status of government forces in NIAC, and clari-
fied that "status" was being discussed in the classic sense as combatant status, i.e.,
one's exposure to hostilities and one's authority to engage in hostilities. Initially,
Professor Watts observed that States have not turned to international law to define
the status of government forces in NIAC. There is no customary international law
in this area and very little by way of treatment in scholarly journals. States have not
seen a need for international law to speak to the issue of government forces in
NIAC, because they are committed to domestic law in this area and have generally
been reluctant to commit NIAC issues to international law. Additionally, there is a
lack of consensus among States as to the law applicable to NIAC. However, NIAC
xxi
Preface
law is changing. It is possible to imagine a future where some States — and perhaps
tribunals — recognize rules regulating participation of government forces in NIAC.
Although NIAC rules are often developed by analogy from rules of IAC, the more
likely source for such a rule would be some derivation of the existing NIAC rule of
distinction. Professor Watts suggested, however, that such a rule would be ineffec-
tive in addressing the traditional concerns of distinction. The real concern with
government forces' participation in NIAC is their conduct rather than their legal
status. Ultimately, this exercise requires a choice between conceiving of combatant
status as a gateway to protections and obligations and conceiving of status in purely
political terms. This forces a more theoretical consideration of jus in hello than
usual.
Mr. Pomper noted that the rules governing actors in NIAC are less developed
than in IAC. Often NIAC rules are drawn from their analogs in IAC and translated
into the NIAC context, but this exercise can be difficult. There are identity and sta-
tus issues at the center of this exercise. Parallels exist between NIAC and IAC, but it
is difficult to categorize the actors in NIAC the same way we do in IAC. How this is
defined has important implications for life and liberty, and has great operational
significance for warfighters. There appears to be growing consensus among the
United States and like-minded countries that there are two primary ways an indi-
vidual becomes liable to attack in a NIAC. The first is if he is a member of an orga-
nized armed group; the second is if he is a civilian who directly participates in
hostilities, whether or not a member of an organized armed group. An individual
who is a member of an organized armed group can be attacked at any time. By
contrast, a civilian who directly participates in hostilities loses protection only for
the duration of the participation. There also appears to be growing support for the
concept that to determine whether there is direct participation in hostilities, the
nature of the harm, causation and a nexus to the hostilities must be considered.
Panel III: Means and Methods in NIAC
Lieutenant Colonel George Cadwalader Jr., U.S. Marine Corps, of the Interna-
tional Law Department, moderated this panel, which discussed means and meth-
ods in NIAC. The panel consisted of Air Commodore Bill Boothby of the Royal Air
Force, Professor Dr. Wolff Heintschel von Heinegg of Europa-Universitat
Viadrina and Mr. Dick Jackson, the Special Assistant to the U.S. Army Judge Advo-
cate General for Law of War Matters.
Air Commodore Boothby opened the panel by posing the question whether
there is a meaningful distinction between the weapons laws that apply during IAC
and NIAC. First examining the similarities, he noted that the fundamental
xxn
Kenneth Watkin and Andrew ]. Norris
principles of superfluous injury/unnecessary suffering and the prohibition of
weapons that are indiscriminate by nature apply equally in both types of conflict.
AP II applies to both, as do the Chemical Weapons Convention, the Biological
Weapons Convention, the Ottawa Convention and the Cluster Munitions Con-
vention. However, there is an issue raised by expanding bullets. While treaty law
bans the use of expanding bullets in I AC, it is questionable whether this is custom-
ary international law. The Kampala Review Conference for the Rome Statute of the
International Criminal Court (ICC) added the offense of employing expanding
bullets to those that could be committed in NIAC, but only if they are employed to
"uselessly aggravate suffering." Thus, expanding bullets seem to represent a point
of distinction between the laws applicable to I AC and NIAC. In the former, the of-
fense is not tied to superfluous injury and unnecessary suffering; in the latter it is.
While the general trend has been convergence in the weapons laws of these two
classes of conflict, achieving complete convergence would require State action and
adjustment of some legal interpretations.
Professor Dr. Heintschel von Heinegg focused on naval means of warfare in
NIAC. Until the 1990s there were not many rules in NIAC related to means and
methods. The emerging trend is to expand treaty law applicable to NIAC through
the terms of the treaty itself, i.e., the treaty provisions state that it applies in NIACs.
However, those treaties that do not distinguish between IACs and NIACs have not
become customary international law. If there is a merger between the law in IAC
and that in NIAC, then it cannot be a one-way street. The law cannot just speak
about protections, but must also address privileges, such as targeting. There have
been some historical examples of naval components to NIACs, such as during the
Spanish Civil War, and the Sri Lanka, Algerian and, more recently, Libyan con-
flicts. There are no substantive rules of international law prohibiting naval means
and methods in NIAC. Within the State's territory, government forces can inter-
fere with international navigation. However, government forces cannot expand
this principle to international waters. And, if non-State actors interfere with navi-
gation, the State must provide notice to international shipping.
Mr. Jackson remarked that the trend has been a collapsing of IAC rules into
NIAC, driven largely by the warfighter on the ground who does not know when the
situation shifts from an IAC to a NIAC. He then discussed perfidy in NIAC. Perfidy
violates the principle of distinction. The most important part of perfidy under
NIAC is feigning of civilian status. The Military Commissions Act requires a show-
ing of a violation of LOAC; perfidy may be charged as such a violation.
xxin
Preface
Panel IV: Recent and Ongoing NIACs
This panel, moderated by Naval War College professor Pete Pedrozo, was comprised
of lieutenant General Raymundo Ferrer of the Philippine Armed Forces, Colonel
fuan Carlos Gomez of the Colombian Air Force and Captain Rob McLaughlin of the
Royal Australian Navy. Its focus was on recent and ongoing NIACs.
General Ferrer focused on the two major insurgent groups in the Philippines:
the Maoist group and the Moro group. The Maoist group, consisting of the Com-
munist Party of the Philippines/New People's Army, operates nationwide and is
the longest-running Maoist insurgency in the world. The Moro group operates
primarily in the southern Philippines, and consists of three major groups: the
Moro National Liberation Front, the Moro Islamic Liberation Front and the Abu
Sayyaf Group. General Ferrer opined that the NIAC in the Philippines is a cry for
human security.
Colonel Gomez discussed the forty-five years of internal conflict in Colombia.
He stated there are three groups of illegal armed actors: the Revolutionary Armed
Forces of Columbia (FARC), the National Liberation Army (ELN) and paramili-
tary forces that have become criminal gangs. Colonel Gomez described the diffi-
culty in the new operational environment that consists of human rights law on one
side and international humanitarian law on the other, with the government's effort
to combat terrorism and organized crime operating, depending on the circum-
stances, under one or the other of these two norms. Essentially, human rights law
provides the framework in territory controlled by the government and interna-
tional humanitarian law applies where the organized armed groups control. The
dichotomy is that under human rights law, where there is typical criminal violence,
the use of force is governed by restrained law enforcement standards, including
self-defense. Under international humanitarian law, where there is a high level of
violence, the concepts of military necessity, military objective, distinction, human-
ity and proportionality apply. The nature and location of the operation determine
whether government forces are operating under law enforcement-type rules of en-
gagement (ROE) or the more robust ROE applicable to traditional military
operations.
Captain McLaughlin analyzed Australia's experience in East Timor, which he
described as a high-end law enforcement operation, and contrasted it with the
Australian experience in Afghanistan, which was a NIAC. He stated that whether a
conflict is classified as law enforcement, a NIAC or an IAC is important because
under a law enforcement scenario, lethal force can be used for self-defense, but in
NIAC and IAC, the LOAC principles govern the use of force. He opined that Af-
ghanistan has clearly been a NIAC since 2005 and that there was little political or
xxiv
Kenneth Watkin and Andrew J. Norris
strategic risk in classifying it as such, especially since the Taliban are seen to have
few redeeming features. However, East Timor was, for political and strategic rea-
sons as much as legal reasons, classified as a law enforcement action, in large part
because the intervening force was invited in by Indonesia and shared responsibility
for security with Indonesia. The decision on how to characterize a conflict impacts
ROE, determining whether there are attack or only self-defense ROE in place with
respect to lethal force. While self-defense ROE are the same under both labels, mis-
sion accomplishment ROE are where they differ. He indicated that there is little
practical difference between NIAC and law enforcement insofar as detention rules
are concerned.
Luncheon Address
The Honorable Harold Koh, Legal Adviser of the Department of State, presented a
luncheon address entitled "International Law and Armed Conflict in the Obama
Administration." Mr. Koh opined that there was an emerging Obama/Clinton
doctrine that espoused four principles: (1) principled engagement, (2) diplomacy
as an element of smart power, (3) strategic multilateralism and (4) compliance
with the rules of domestic and international law.
Mr. Koh stated that the United States is deeply committed to applying all ap-
plicable law, including LOAC, in its non-international armed conflict with al
Qaeda with respect to both targeting and detention. Under domestic law, the au-
thority to detain stems from the Authorization for Use of Military Force (AUMF),
as informed by the laws of war. Common Article 3 and Additional Protocol II to
the Geneva Conventions, as well as the Supreme Court of the United States, all
contemplate that parties may lawfully detain belligerents to prevent them from
returning to the battlefield. Once detained, all persons in U.S. custody must be
treated humanely, and the administration has taken a number of steps to ensure
that detainees in JJ.S. custody are treated humanely in accordance with our do-
mestic and international legal obligations. The United States has unequivocally af-
firmed that it will not engage in torture and has affirmed that current U.S. military
practices are consistent with Additional Protocol II to the Geneva Conventions
and with Article 75 of Additional Protocol I to the Geneva Conventions, including
the rules within these instruments that parallel the International Covenant on
Civil and Political Rights.
He further stated that the United States complies with all applicable law in its
targeting practices. The United States is in an armed conflict with al Qaeda, the
Taliban and associated forces, and may also use force consistent with the inherent
right of self-defense. Congress has authorized force through the AUMF. Osama
xxv
Preface
bin Laden, the leader of al Qaeda, clearly had an ongoing operational role and his
activities posed an imminent threat against the United States. There can be no
question that he was the leader of an enemy force and a legitimate target in our
armed conflict with al Qaeda. Moreover, the operation against him was conducted
in a manner consistent with LOAC, including with the principles of distinction
and proportionality, and in accordance with U.S. domestic law.
Turning to Libya, Mr. Koh stated that there was a call to international action by
the Arab League and NATO, and the use of force to protect civilians was authorized
by the UN Security Council under Chapter VII of the UN Charter because the situ-
ation within Libya threatened international peace and security. U.S. actions were
consistent with the War Powers Resolution in these particular circumstances, spe-
cifically as follows: (1) the U.S. mission was limited in nature, duration and
scope — with the shift to an explicit support role by the U.S. forces as part of a
NATO-led multilateral civilian protection operation; (2) the exposure of U.S.
forces was limited, involving no U.S. casualties or threat of significant U.S. casual-
ties and no sustained fighting or active exchanges of fire with hostile forces; (3) the
risk of escalation was limited, with no U.S. military forces on the ground; and (4)
the military means used were limited, the ordnance dropped being a fraction of
that used in Kosovo. Mr. Koh posed the question: Did Congress in 1973, when it
enacted the War Powers Resolution as an attempt to prevent future Vietnam Wars,
intend that it also interrupt a mission — limited in nature, duration and scope —
launched to stop the slaughter of innocent civilians, as was the mission in Libya?
Mr. Koh concluded by remarking that the administration has tried to square its
emerging national security policies with the need for interoperability with allies
and coalition partners who are parties to the ICC and cluster munitions and land-
mines treaties.
Panel V: Detention in NIAC
This panel was moderated by Lieutenant Colonel Eric Young, JA, U.S. Army, of
the International Law Department, and consisted of Brigadier General Thomas
Ayres, JA, U.S. Army; Lieutenant Commander Kovit Talasophon of the Royal Thai
Navy; Dr. Knut Dormann, of the International Committee of the Red Cross; and
Deputy Assistant Secretary of Defense; Rule of Law and Detainee Policy, William
Lietzau.
General Ayres addressed the role of detainee operations in NIAC. He noted that
legal authority existed to detain insurgents in a NIAC to keep them out of the fight
until the cessation of hostilities. He noted, however, that based upon his experi-
ences in Iraq, there are four types of insurgents: (1) those acting for a criminal
xxvi
Kenneth Watkin and Andrew J. Norris
purpose, e.g., to steal; (2) those who oppose the presence of coalition forces and
attempt to demonstrate to the civilian populace that the occupying force is incapa-
ble of keeping civilians safe; (3) those who oppose the government and seek to dis-
credit it; and (4) foreign fighters who may be training to engage in terrorist activities
and pose a threat to the national security interest of the United States or other coali-
tion nations.
The first type of insurgent, those with a criminal purpose, would, in almost
all phases of the conflict, be turned over to the government of Iraq to be tried in
the domestic criminal courts. With regard to the remaining categories of insur-
gents, the coalition forces' objective was to detain only the worst of the worst, be-
cause, for operational reasons and due to "insurgent math," it was impossible to
detain all potential "bad actors." The operational realities drove the coalition to
evidence-based detention. Moreover, once the UN Security Council resolution
providing authority for the presence of coalition forces in Iraq neared expiration,
the coalition began transferring detainees to the Iraqi government. In preparation
for that transfer, the coalition sought to assist in the maturation of the Iraqi gov-
ernment institutions in their implementation of the rule of law by increasingly
complying with Iraqi law and respecting Iraq's criminal law as the basis for de-
taining insurgents. General Ayres asserted that the coalition's efforts in modeling
adherence to a criminal law paradigm to detain insurgents should not be seen as
undercutting the international humanitarian law basis for detaining insurgents in
a MAC.
Lieutenant Commander Talasophon reviewed Thailand's experience with de-
tention in what he characterized as "almost a civil war" with communist groups
during the Cold War and in border wars with its neighbors. He indicated that there
are ongoing hostilities in the southern portions of Thailand between the govern-
ment and those with political grievances. However, the Thai government has de-
clared that these hostilities are not a NIAC; therefore, they are dealt with through
law enforcement operations. Domestic law has been used instead of international
humanitarian law, although the government has complied with the spirit of Com-
mon Article 3 in conducting the operations. Detention is used to secure evidence
and to ensure that the actor does not engage in further violence.
Dr. Dormann spoke on the legal framework of detention in NIAC. He began
with a general observation that the sources of international law pertaining to de-
tention in NIAC consisted of Common Article 3, Articles 4 through 6 of AP II and
customary international law. Next, he opined that it is now generally accepted that
human rights law applies alongside international humanitarian law in situations of
armed conflict, including, despite the view of some important dissenters like the
United States, extraterritorially. Dr. Dormann discussed the rules on treatment in
xxvn
Preface
detention, conditions of detention and fair trial rights, but focused his remarks on
internment (i.e., non-criminal detention). He indicated that internment cannot be
used solely for interrogation purposes; nor can it be used as punishment for past
acts. Internment may be resorted to if there are imperative reasons for security to
do so, a standard which includes direct participation in hostilities. He stated that
the status of those detained should be periodically reviewed to determine whether
they are still a security threat. Dr. Dormann concluded by stating that there were
gaps in the law of detention in NIAC and States should meet to discuss the legal
framework to fill those gaps.
Mr. Lietzau observed that the United States used to not think about what law
applied in NIAC, particularly with regard to those detained during the conflict. In
tact, the United States' last experience with long-term detention was of prisoners of
war captured during World War II. The law then was clear — enemy prisoners of
war could be held until the end of the conflict. But twenty-first-century conflicts
have changed. Now the war is not with another State, but with a non-State actor, al
Qaeda. In the early period of this new type of war, the United States was accused of
holding detainees indefinitely without providing a means of review to determine
whether there was sufficient basis for the detention. Today, newly captured indi-
viduals are submitted to a Detainee Review Board. The Board, comprised of three
field-grade military officers, reviews each individual's detention for both legality
and necessity of continued detention. The detainee receives expert assistance from
a U.S. officer who is authorized access to all reasonably available information per-
taining to that detainee. This review is repeated periodically after the initial hear-
ing, which must take place within sixty days of arrival at the internment facility.
Now some argue that the pendulum has swung too far, and that the United States is
releasing detainees (some of whom have returned to the fight) too quickly. What is
unarguable is that an indefinite detention without some form of process in these
new wars will not be stomached.
Panel VI: Enforcement in NIAC
Panel VI, on enforcement in NIAC, was moderated by Colonel Darren Stewart,
OBE, British Army, the Director of the Military Department of the International
Institute of Humanitarian Law at San Remo, Italy. The panelists were Professor
John Cerone, professor of law and Director, Center for International Law & Policy,
New England Law | Boston; University of Essex professor Francoise Hampson; and
Johns Hopkins University professor Ruth Wedgwood.
Introducing the topic, Colonel Stewart remarked that there is little substantive
black letter law applicable to NIAC when compared to the international
xxvi n
Kenneth Watkin and Andrew J. Norris
humanitarian law applicable to IAC. However, while the law in NIAC has gaps, it is
applied day to day by practitioners on the ground. The question of enforcement
brings the gaps in the law into sharp focus.
Professor Cerone discussed enforcement issues in the context of the then-current
situation in Libya. After reviewing the phases of the conflict, he discussed the legal
regimes that applied to each phase, as well as how they related to each other. He
stated that it is now widely accepted that international human rights law applies
simultaneously with humanitarian law in internal armed conflicts. Even those
States that object to simultaneous application in international or transnational
armed conflicts do not object to the application of international human rights
law in internal armed conflicts. He then focused on international criminal law and
the Security Council referral of the situation in Libya to the ICC. As Libya is not a
party to the ICC Statute, the Court will need to address issues of immunity and
nullum crimen sine lege. The Court will have to ensure, in particular, that any
crimes prosecuted are well established in customary international law. Professor
Cerone indicated that twenty years ago it was debatable whether any violations of
NIAC law gave rise to individual criminal responsibility in international law. The
legal landscape has changed dramatically since that time. Nonetheless, he con-
cluded that it is clear that not all of the war crimes within the subject matter juris-
diction of the ICC have entered the corpus of customary law.
Professor Hampson opined that in the past fifteen years the focus has been on
criminal responsibility, with not enough focus on civil responsibility. The advan-
tages of a civil action are that the claim can be brought against a State without the
need to identify the actual perpetrators, there is a lower standard of proof than in
criminal cases and the victims have more control over the claims. Claims can be
brought in the domestic courts of the State where the violation occurred and possi-
bly in the domestic courts of third-party States. Professor Hampson indicated that
there is no international means of bringing a claim against a non-State actor, al-
though possiblyarbitration could be used on an ad hoc basis. At the international
level, the only way to proceed is to bring a claim against a State. Claims could be
brought before the International Court of Justice or other human rights bodies. In
fact, she stated, the most important feature of the human rights bodies is the right
of an individual to file a petition with them.
Professor Wedgwood offered several suggestions for improving the work of the
ad hoc war crimes tribunals. First, indictments should be structured to allow a
speedy trial. The charges against Milosevic might have been tried in separate parts
in Bosnia, Croatia and Kosovo, instead of the four-year trial in the International
Criminal Tribunal for the former Yugoslavia (ICTY) during which both the pre-
siding judge and the defendant passed away. Second, international justice should
xxix
Preface
not be segregated by tribunal; she observed that it is unfortunate the ICTY declined
to share evidence from Serb military archives with the International Court of Jus-
tice in the latter's adjudication of the Srebrenica genocide case. Third, it is impor-
tant that cases be tried against defendants from all ethnic communities in a civil
conflict, SO that there is no misplaced imputation of bias. The failure of the Rwanda
tribunal to try any cases against members of the Rwandan Patriotic Front and the
Tutsi armed forces, instead remitting them to local justice authorities controlled by
the Kagame government, was an unfortunate event. Fourth, political organs are
not well suited as the locus for war crimes investigations. In particular, the con-
ducting of investigations of war crime allegations by the UN Secretary-General's
office or the Human Rights Council may be problematic because of limited fact-
finding capacity and their daily immersion in politics.
Closing Address
Professor Emeritus Yoram Dinstein of Tel Aviv University and the U.S. Naval War
College's Stockton Professor of International Law during academic years 1999-
2000 and 2002-3 delivered the closing address. Professor Dinstein addressed five
main areas: the definition of NIAC, thresholds in armed conflicts,jws in hello, inter-
vention and interaction.
Professor Dinstein defined a NIAC as a conflict taking place within the borders
of a single State, carried out between the central government of that State and orga-
nized armed groups, or, there being no effective government, between organized
armed groups fighting each other. A NIAC can spill over across the borders and
start another NIAC in a second country, as happened in the Great Lakes region of
Africa. Still, the idea (endorsed by the Supreme Court of the United States) that a
NIAC can be global is oxymoronic.
Next, Professor Dinstein pointed out that there were three thresholds in armed
conflicts: two for NIACs and one for IAC, plus a sublevel of sporadic and isolated
violence (e.g., riots) that is below the first threshold, and thus law enforcement in
nature. The first threshold of NIACs is established by Common Article 3 of the four
Geneva Conventions of 1949. This famous provision (which reflects customary in-
ternational law) does not spell out what conditions have to be met for the first
threshold to be crossed. The Appeals Chamber of the ICTY, in the 1995 Tadic case
added the element that the violence must be "protracted."
The second threshold of NIACs is set up by AP II of 1977, which requires the
exercise of control by an organized armed group over a part of the territory, en-
abling it to carry out sustained and concerted military operations. Professor
Dinstein indicated that this requirement makes the distinction between a NIAC
xxx
Kenneth Watkin and Andrew J. Norris
and forms of conflict not amounting to a NIAC much clearer: sustained and con-
certed military operations are the antonym of sporadic and isolated violence. The
acid test of control of some territory explains the difference, for instance, between
the then-current internal situations in Libya and Syria. In Libya (not counting the
foreign intervention by fiat of the Security Council), there was no doubt a NIAC
inasmuch as the insurgents exercised control over vast tracts of land. By contrast,
the violence in Syria remained below the threshold — notwithstanding its great
intensity and the fact that it was protracted — because no part of the territory was
under the control of any insurgent organized armed group.
The third threshold means that the armed conflict amounts to an IAC, and this
denotes that two or more States are pitted against each other.
Professor Dinstein then focused on the jus in hello in NIAC, noting that while
there is a very remarkable trend in treaty law of growing convergence between the
jus in hello applicable in IACs and that in NIAC, there cannot be a full merger of the
law in the two types of armed conflict. He indicated that there are at least three in-
surmountable obstacles to such merger: (a) the domestic law will always consider
insurgents to be traitors and therefore they cannot be accorded the status of prison-
ers of war by the government of the State (absent recognition of belligerency); (b)
neutrality is not an issue, as there is only one State embroiled in a NIAC; and (c) the
whole body of law relating to belligerent occupation is irrelevant to NIACs since
neither the government nor the insurgents can be in belligerent occupation of their
own land. There are additional, less compelling problems relating to the legality of
certain means and methods of warfare, e.g., the legality of particular weapons and
blockades.
The issue of intervention relates to military assistance requested from, or of-
fered by, a foreign country when a NIAC is going on. International law permits for-
eign countries to extend military assistance to the State combating insurgents. If
and when the foreign country does so, the armed conflict remains a NIAC, despite
the participation"of foreign troops in the hostilities, inasmuch as the foreign troops
are not battling another State. However, if the foreign troops are deployed against
the government, the armed conflict automatically crosses the third threshold and
becomes an IAC. Moreover, even when the foreign troops arrive at the request of
the government, consent to their presence can be withdrawn at any time. Once
consent is withdrawn by the government, the foreign forces must leave. Failure to
do so will result in the situation becoming an IAC.
The last issue Professor Dinstein addressed is interaction. He first indicated that
it must be appreciated that an armed conflict can coexist with the law enforcement
paradigm. Criminal activities do not cease when an armed conflict (either a NIAC
or an IAC) breaks out. Indeed, usually crime rises in wartime, if only because there
xxxi
Preface
are numerous new crimes (such as black market activities or trading with the en-
emy). Ordinary crimes, even in the course of an armed conflict, are governed not
by the jus in hello but by domestic criminal law, subject to the precepts of interna-
tional human rights. Second, a NIAC can segue into an IAC; foreign intervention
on behalf of insurgents is a prime example. But an IAC can also be the outcome of
the implosion of a State torn apart by a NIAC and the continuation of the hostilities
between several new sovereign States created on its ruins. Obviously, as far as fight-
ers in the field are concerned, it may not always be easy to detect at what exact point
a NIAC has morphed into an IAC (the situation in Bosnia in 1992 showed that lack
of clarity in a graphic manner). It is therefore easier to analyze the situation when
there has been an intervening period of time; for instance, Eritrea first rebelled suc-
cessfully against Ethiopia in a NIAC, and then, several years later, started an IAC
against the same country. Third, the reverse is also true: IACs can turn into NIACs.
Thus, the IAC between the American-led coalition and the Baathist regime in Iraq
came to a successful end, and the fighting that continues in Iraq is today no more
than a NIAC. Fourth, a NIAC and an IAC can be waged concurrently in the same
country. The best illustration is Afghanistan in 2001, where there was a NIAC be-
tween the Taliban and the Northern Alliance, and (starting in October of that year)
a separate IAC between the United States (supported by its allies) and the Taliban.
Fifth, as indicated by General Ferrer with respect to the Philippines, there may even
be several unrelated NIACs going on in the same country simultaneously, where
different organized armed groups fight the same central government while having
diverse — and perhaps clashing — aims. All this can cause confusion, especially
since governments are often "in denial," reversing the thresholds. That is to say,
when governments are engaged in an IAC, they tend to claim that the armed con-
flict is no more than a NIAC. When they are caught in a NIAC, they are inclined to
maintain that the violence is sporadic and below the NIAC threshold.
Professor Dinstein concluded by recognizing that times are changing and that
NIAC law must change with them.
KENNETH WATKIN
201 1-12 Charles H. Stockton
Professor of International Law
U.S. Naval War College
ANDREW J. NORRIS
Captain, U.S. Coast Guard
International Law Department
U.S. Naval War College
XXXI 1
PARTI
OPENING ADDRESS
I
"Small Wars": The Legal Challenges
Kenneth Watkin*
R
ear Admiral Christenson, Ladies and Gentlemen.
Let me begin by saying what a pleasure it is to finally be here at the Naval War College
delivering opening remarks at the annual international law conference. I say "finally"
because as many of you know I took a detour, quite literally. While driving here last
June to look for accommodations, I received a phone call asking if I would be a For-
eign Observer on the Israeli independent commission investigating the Gaza mari-
time incident of May 31, 2010. I accepted and the College was very gracious in
delaying my start and, I must say, patient in waiting for my return.
I am not going to comment on the commission, in part because its work is still
ongoing; however, Part One of its report dealing with the blockade is available on
the commission website for those who have an interest in the law governing such
operations. 1 1 will say, however, that if I thought traveling to the Middle East a year
ago would be my last connection with the Naval War College for a while I was com-
pletely mistaken. Perhaps it should have come as no surprise given the subject mat-
ter of the inquiry, but it seemed everywhere I turned I found myself in touch with
someone or a learned publication connected to this College.
The list of former Stockton Professors was itself impressive. They included,
most obviously, Mike Schmitt and Wolff Heintschel von Heinegg, who directly as-
sisted the commission, but also inevitably reference had to be made to the
* Stockton Professor, U.S. Naval War College.
'Small Wars": The Legal Challenges
influential works of other Stockton Professors, such as Yoram Dinstein 2 and my
fellow Canadian Leslie Green. 3 Craig Allen's article "Limits on the Use of Force in
Maritime Operations in Support of WMD Counter-Proliferation Initiatives,"
found in the eighty-first edition of the International Law Studies series 4 (the "Blue
Book"), was particularly informative regarding the law on stopping ships on the
high seas. Articles such as Professor Allen's highlight the impact that the product of
conferences like this can have on real-world international issues. 5
The connection to the College did not stop there. Wolff Heintschel von Heinegg's
contribution on blockade to the Max Planck Encyclopedia of Public International
Law is world leading. 6 The International Institute of Humanitarian Law's Rules of
Engagement Handbook, 7 brought to life under the steady hand of Dennis
Mandsager, provided guidance in an area often ignored by international lawyers:
the right to individual personal self-defense, as opposed to State self-defense, un-
der international law. In addition, the book Naval Blockades and Seapower* edited
by two professors from the Naval War College, Bruce A. Elleman and S.C.M. Paine,
provided an excellent historical perspective on blockades and maritime interdic-
tion. Finally, NWP 1-14M, The Commander's Handbook on the Law of Naval Oper-
ations, 9 a product of the International Law Department, served not only as an
essential source on the law governing blockades, but also, importantly, as an indi-
cation of the views of a specially affected State, like the United States, which then
could be compared with the more international flavor of the 1994 San Remo Man-
ual. U) Quite impressive influence by the International Law Department, its alumni
and the much broader Naval Warfare College community on an issue arising a
world away. I can admit to feeling a considerable amount of humility given the
work of my predecessors as I start my sojourn as the Stockton Professor.
However, we are not here to talk about blockade, but rather "non-international
armed conflict," although the relative inattention paid to such conflicts by interna-
tional lawyers until recently reminds me of the reference in the San Remo Manual
regarding the participants having commenced their discussion of blockade law
with the question of whether it was "entirely archaic," with some participants ex-
pressing the view it had fallen into "complete desuetude." 11 I personally can con-
firm that blockades — and blockade law — have not disappeared and it is clear that
in looking at both history and the present situation non-international armed con-
flict has definitely not fallen into disuse.
I want to start with this quote by Colonel Callwell of, at that time, His Britannic
Majesty's Forces, defining in 1906 a form of warfare known as "small wars": "cam-
paigns undertaken to suppress rebellion and guerrilla warfare in all parts of the
world where organized armies are struggling against opponents who will not meet
them in the open field." 12
Kenneth Watkin
Of course, these often are "non-international armed conflicts" by another
name. Now in case anyone is wondering why a "Naval" War College is concerning
itself with "small wars," one need not look farther than the United States Marine
Corps, whose 1940 Small Wars Manual was not only the leading text on the sub-
ject in its day, but also identified such wars as representing the "normal and fre-
quent operations of the Marine Corps." 13 Little has changed, when one considers
that the Vietnam War and the ongoing conflict in Afghanistan qualify in various
aspects as "small wars," although they are anything but small. I leave it up to you
to consider whether the Navy and Marine Corps involvement in the air and
missile strikes at the opening of the Libya operation constituted participation in
yet another "small war."
"Small wars" are not new. Unfortunately, neither is the inability of the interna-
tional community to provide the parties fighting such conflicts the comparatively
extensive and clear legal framework that is in existence for State-versus-State con-
flict. Indeed, both operators and their legal advisors should get uncomfortable
when reference has to be made to an international criminal law treaty, the 1998
Rome Statute, 14 for the clearest convention-based listing of the legal norms appli-
cable to such conflict. 15 Indeed, in what is now over a century after Colonel
Callwell's definition of "small wars" was presented, it is hard not to use the term
"failure" — or at least more positively "limited success," if you are a "glass half full"
individual — when considering how well, in terms of consensus and clarity, the ar-
ticulation of the law of non-international armed conflict has fared.
As most of you are aware a big part of the reason for this "limited success" is that
States themselves have been very reluctant, indeed often hostile, to the notion of
clarifying this area of the law. Certainly, the unsuccessful efforts of the Interna-
tional Committee of the Red Cross (ICRC) to have the rules of international armed
conflict apply equally to non-international ones during the negotiations of the
1949 Geneva Conventions stand out as one of a number of examples of that reluc-
tance. What was left was the important, but exceptionally watered-down, Com-
mon Article 3 protections applicable to "conflicts not of an international
character." 16 States, including the brand-new States of the post-colonial period,
continued to be very concerned that their non-State opponents, existing and po-
tential, would be "legitimized" by their being provided the same rights as States in a
treaty regime governing armed conflict. 17 While I understand the jws ad helium
branch of international law governing the recourse to war concerns itself with
State-versus-State conflict, and considerable effort is made to ensure the law gov-
erning the conduct of hostilities, jws in bello, applies equally to all participants, State
and non-State alike, it is also clear to me one aspect of just war theory, fighting for a
State as the "right authority" in order to have legitimacy, hangs like a dark cloud
'Small Wars": The Legal Challenges
over the attempts to reach consensus on the legal regulation of non-international
armed conflict In particular, it impacts on issues such as status of participants,
detention, targeting and direct participation in hostilities (DPH) — the common
topics of contemporary media headlines. In addition, given the evident lack of con-
sensus as to what law applies to these "small wars," it has left open a much broader
and more vigorous dialogue regarding how and to what degree human rights law
governs the use of force, the treatment of detainees and the accountability process
in internal conflicts.
Despite claims that international humanitarian law can be applied in its entirety
to non-international conflicts, and the policies of various States that seek to do just
that, it appears to me that gaps remain. I also sense, at times, an element of fatigue
setting in within the legal community regarding these issues. As someone
mentioned to me recently as we were talking about an upcoming event, there is a
feeling of "not yet another conference on the interface between human rights and
humanitarian law." However, it cannot be a fatigue that is forged with a sense of re-
sounding success. One decade into the twenty-first century many countries are still
engaged in "small wars," both long- and short-term, and the requirement to re-
solve these issues remains more important than ever.
I believe there are a number of reasons why this area of the law must be clarified.
First, non-international armed conflict has been and remains the predominant
form of warfare. Notwithstanding a growing concern over potential international
armed conflicts with certain States flexing newfound economic and military
powers, they remain just that, potential conflicts, which, should they arise, would
largely be conducted within a comparatively well-developed framework of interna-
tional law — although, as will be discussed shortly, not one without some disagree-
ment. The same cannot be said for the existing and future "small wars" that will
continue to occupy the attention of States, either because they are occurring within
their territory or as a result of having deployed expeditionary forces to deal with
them. Non-international armed conflict will not disappear in the same way that
blockades were believed by some to have fallen into disuse.
The prevalence of non-international armed conflict has also been ensured by
an approach that views only State-on-State conflict as "international" in charac-
ter. However, such "pure" international armed conflicts are by definition increas-
ingly rare. The effect of a determination that a conflict is non-international in
character is that participants are then immersed in a legal environment that in
many places lacks the clarity of its international counterpart. In an interesting
historical note, such determinations can be made virtually overnight. In Afghani-
stan, as early as June 2002, there were declarations that the then-existing interna-
tional armed conflict was over. 18 The conflict from that point was to be considered
Kenneth Watkin
a non-international one. Of note, the U.S. Supreme Court in Hamdan subse-
quently adopted this categorization for the Afghanistan conflict in 2006. 19 One
could wonder if the troops on the ground actually noticed the difference. I can tell
you there was no change in the operational environment, the threat or the com-
plexity of the operations they were conducting. I doubt the legal advice provided
to them changed either. However, such debates regarding "form" often seem to
occur without much thought of the resulting legal uncertainty they are imposing
on participants. The debate over categorizing conflict does cause me to think at
times of Michael Walzer and, if I can paraphrase him, I think it may fairly be said
that lawyers do from time to time appear to construct paper worlds which fail
at crucial points to correspond to the world in which everyone else lives. 20 It is no
wonder that for many practitioners the key focus is on whether there is an "armed
conflict" rather than on a struggle over assessing its degree of "international" or
"non-international" character.
It is common to look at the Instructions for the Government of Armies of the
United States in the Field of 1863, the famous Lieber Code, as a starting point in
the effort to codify the rules governing armed conflict. It is quite ironic this effort
commenced with a conflict that itself in contemporary terminology would be
termed a "conflict not of an international character." Of course, we all know it
better as a civil war. After nearly one hundred fifty years of working to regulate
such armed conflict it seems the situation has become less clear. Perhaps the rea-
son the Lieber Code managed to even get off the ground was that it was the prod-
uct of one government rather than an international effort. In this respect the
suggestion by John Bellinger, a former Department of State Legal Advisor, in an
article on the law about detainee operations in contemporary conflict found in the
201 1 American Journal of International Law 21 appears to have considerable merit.
He suggests that specially affected States, those engaged in detention operations,
should get together and work out a recommended common set of legal rules
governing such operations given the inability of the international community to
do so. 22
Unfortunately things actually seem to be getting increasingly muddier. It was
suggested at a conference I recently attended that because there were no "combat-
ants" in non-international armed conflict there could be no "combatant privilege"
for State armed forces. Further, the authority for a State to use deadly force would
have to be found in domestic legislation of the State, even if those soldiers were
fighting on the other side of the world. While I am at a loss to think of any State
practice of prosecuting its own security forces on the basis there was no empowering
domestic legislation, it would be interesting to know how many of the States repre-
sented in this room with troops serving in Afghanistan have such specific domestic
'Small Wars": The Legal Challenges
legislation focused on targeting during a non-international armed conflict in a far-
away land. I would suggest there is strong argument supporting the existence of a
customary norm of providing State security forces a form of "privilege" in respect
to the use of force in internal armed conflicts. Perhaps this will be an issue that can
be discussed and clarified during this conference.
Second, the lack of clarity regarding the law of non-international armed con-
flict can have a profound and sometimes negative effect, not only on the victims
of conflict, but also on States in terms of whether their actions are viewed as being
legitimate. What if there had been a greater international consensus on the sub-
stantive law that applied to the detention, treatment, transfer and status review of
unprivileged belligerents (if one can use that term in a non-international armed
conflict) detained in the post-9/1 1 period? Would the potential for abuse and alle-
gations of mistreatment have been the same? One cannot help but think that the
dialogue would have been much different if there had been greater clarity in the
law. An application of the policy of treating captured personnel under prisoner-
of-war standards, without providing that status, or as security detainees under
Geneva Convention IV could have been a practical, defensible and ultimately
helpful approach. However, even now, some ten years after the issue first arose,
an internationally agreed framework governing detainees in non-international
armed conflict is lacking. That it remains a topic of academic debate at this con-
ference demonstrates the distance that must still be traveled on this issue before
"success" can be declared.
Third, I also sense from time to time that there is a belief that the issues applicable
to non-international conflict have no real relevance to conflicts between States.
Perhaps this is simply a reflection of the lack of interest demonstrated by States
themselves in the regulation of non-international armed conflict. However, there
can be significant "cross-pollination" of legal issues. For example, a number of
issues that arise in the conduct of internal "small wars" are also inherent in an in-
surgency being carried out during belligerent occupation, which, of course, occurs
during international armed conflict. Both occupation and internal conflicts
ultimately involve what General Sir Rupert Smith has called a "war amongst the
people." 23 In addition, it is highly likely that any future war between States would
involve not only clashes between regular military forces but also "irregular
forces," "organized armed groups" or even individual civilians acting on the
State's behalf. This includes in the cyber realm. Any suggestion that legal issues
in non-international armed conflict are not relevant to international conflict
would have to address the controversial aspects of Additional Protocol I 24 that ap-
pear for nearly thirty- five years to have stood in the way of its universal acceptance
and application to international armed conflicts. 25
8
Kenneth Watkin
Fourth, and finally, the unwillingness of States to engage in clarifying what law
applies to non-international armed conflict has in many respects negatively im-
pacted on their ability to influence how that law will be, and is presently being,
shaped. As Yoram Dinstein has noted in the most recent edition of his book The
Conduct of Hostilities under the Law of International Armed Conflict, " [interna-
tional law must march in lockstep with the compelling demands of reality." 26 Gaps,
both real and perceived, are being filled through means such as unofficial restate-
ments of the law and manuals of rules crafted by various groups of legal "experts."
States do send officials in their personal capacity, although they are often outnum-
bered, and ultimately lack the voice that they would have in official treaty negotia-
tions. The results can be problematic for States. One example is reflected in the
ICRC's DPH study. 27 Now, I am critical of a number of aspects of the study; 28
however, at the same time it must be noted that the ICRC courageously took on
one of the most perplexing and difficult issues of the contemporary law of armed
conflict — one that States appear to have been "unwilling or unable," to use a con-
temporary phrase, to address.
My goal today is not to dwell on specific details of the DPH study but rather to
refer to it as being representative of a trend of suggesting that States should be held
to a different and ultimately more onerous standard than their non-State oppo-
nents. The study sets out significantly broader parameters for "membership" in
regular armed forces, and therefore for the forces' ultimate targetability, than it
does for members in the "organized armed groups" against which they are fighting.
In effect, it seems to turn the jus ad helium principle of "right authority" on its head.
A principle that provided the basis for giving prisoner-of-war status to those fight-
ing for a State, thereby privileging them over their non-State counterparts, now
seems to mean, if you accept the thesis, those same State actors, indeed many of you
in this auditorium, can be more easily killed than persons performing exactly the
same function in an opposing non-State organized armed group. Indeed the non-
State counterparts would be protected from being targeted by being considered to
be "civilians."
Ultimately, this approach seems to have a "human rights-like" flavor, where it is
the State that is always held more responsible and accountable. In a 2010 report to
the Human Rights Council, the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, when looking at the DPH study, suggested that while some
may see an inequity between State forces and non-State actors identified in the
study, it is one built into international humanitarian law in order to protect civil-
ians. 29 It is not immediately clear to me that the statistics from the Afghanistan
conflict support this approach. Indeed, it is reported that in Afghanistan in 2010,
75 percent of civilian casualties were caused by insurgents. 30 It is difficult to see
'Small Wars": The Legal Challenges
how making insurgents who have demonstrated little reticence about killing unin-
volved civilians more difficult to target than their State counterparts enhances the
protection for those civilians. It also points to one of the acknowledged challenges
of applying human rights norms to contemporary armed conflict. International
humanitarian law has long sought to have equal application to both sides of the
conflict, the issue of prisoner-of-war status notwithstanding. Adding new inequity
to the existing law is not likely to aid in reaching consensus among such significant
stakeholders in international law as States.
It seems to me that approaches which do not rely on broadly accepted interna-
tional law — such as approximating what any other detainee captured under the ex-
isting treaty regime in armed conflict would receive, in deciding on the standards
for the treatment of those captured in non-international conflict — or which do not
evenly apply the law in respect of targeting to all parties to the conflict, are more
likely to create obstacles rather than help resolve these fundamental issues.
At the same time, it is difficult to see how States can complain about new "soft
law" and manuals of rules if they do not become more strategically and fully en-
gaged in the processes that are being used to clarify the law. Ultimately, attempts
will be made to fill voids with or without State participation, and with good reason.
Civilians must be protected from the ravages of war. The question is the degree to
which States want to influence that process.
There are important, indeed essential, issues that need to be resolved. Im-
pressive work is being done. One example is the 2006 Institute of International
Humanitarian Law Manual on the Law of Non- International Armed Conflict 1,1 — no
surprise, again with a link to the Naval War College, its authors being Yoram
Dinstein, Mike Schmitt and Charles Garraway. Unfortunately, it is a work that has
not received the publicity that it should and the unsettled State of the law demands.
As editor of this year's "Blue Book," I will be interested to see how many authors refer
to this manual in their scholarly assessments of non-international armed conflict.
Finally, there is this conference, and the inevitable articles in the "Blue Book"
that will result. I encourage all of you to participate fully and ask probing questions
of the panelists, thereby shaping the discussion. Indeed, you never know. You,
yourself, might someday unexpectedly take a detour and become immersed in a
complicated legal problem related to a "small war" occurring on the other side of
the world. I do know that you will be able to search the product of this conference,
and others like it here at the Naval War College, for guidance when dealing with
non-international armed conflict — the difficult humanitarian law issue of our
time. Thank you.
10
Kenneth Watkin
Notes
1. Jacob Turkel et al., 1 The Public Commission to Examine the Maritime Incident of 31
May 20 10 (20 \\), available at http://turkel-committee.gov.i1/files/wordocs//8707200211english
.pdf.
2. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL
ARMED CONFLICT (2d ed. 2010).
3. Leslie C. Green, The contemporary law of armed conflict (3d ed. 2008).
4. Craig H. Allen, Limits on the Use of Force in Maritime Operations in Support ofWMD Coun-
ter-Proliferation Initiatives, in INTERNATIONAL LAW CHALLENGES: HOMELAND SECURITY AND
COMBATING TERRORISM 77 (Thomas McK. Sparks & Glenn M. Sulmasy eds., 2006) (Vol. 81,
U.S. Naval War College International Law Studies).
5. See George Walker, The Tanker War, 1980-88: Law and Policy 389-394 (2000)
(Vol. 74, U.S. Naval War College International Law Studies).
6. Wolff Heintschel von Heinegg, Blockade, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW (Riidiger Wolfrum ed., 2010); Wolff Heintschel von Heinegg, Naval
Blockade, in INTERNATIONAL LAW ACROSS THE SPECTRUM OF CONFLICT: ESSAYS IN HONOUR OF
Professor L.C. Green on the Occasion of His Eightieth Birthday 203 (Michael N.
Schmitt ed., 2000) (Vol. 75, U.S. Naval War College International Law Studies).
7. International Institute of Humanitarian Law, San Remo Handbook on Rules
OF ENGAGEMENT (2009), available at http://www.iihl.org/iihl/Documents/ROE%20handbook
%20ENG%20May%2020 1 1 %20PRINT%20RUN.pdf.
8. Naval Blockades and Seapower: Strategies and Counter-strategies, 1805-
2005 (Bruce A. Elleman and S.C.M. Paine eds., 2006).
9. U.S. Navy, U.S. Marine Corps & U.S. Coast Guard, The Commander's Handbook on
the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A (2007),
available at http://www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/
1 - 1 4M_( Jul _2007)_(NWP.
10. San Remo Manual on International Law applicable to Armed Conflicts at
Sea (Louise Doswald-Beck ed., 1995).
11. Id. at 176.
12. C.E. Callwell, Small Wars: Their Principles & Practice 21 (3d ed. 1996) (1896).
13. United States Marine Corps, Small Wars Manual H l-l(d) (1940).
14. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.
15. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 6 n.l 1 (4th ed. 2005).
16. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Pris-
oners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Pro-
tection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
17. See Commentary to Geneva Convention III Relative to the Treatment of
PRISONERS OF War 32 (Jean S. Pictet ed., I960), available at http://www.cicr.org/ihl.nsf/COM/
375-590006?OpenDocument (Pictet outlines the reaction by a number of States regarding a
wholesale application of the Conventions to internal conflict as: "It was said that it would cover
all forms of insurrections, rebellion, and the break-up of States, and even plain brigandage.
Attempts to protect individuals might well prove to be at the expense of the equally legitimate
protection of the State. To compel the Government of a State in the throes of internal conflict
11
'Small Wars": The Legal Challenges
to apply to such a conflict the whole of the provisions of a Convention expressly concluded to
cover the case of war would mean giving its enemies, who might be no more than a handful of
rebels or common brigands, the status of belligerents, and possibly even a certain degree of legal
recognition.").
1 8. See Letter from Philip Spoerri, ICRC Legal Adviser, to Mr. Doherty, Clerk of the Commit-
tee on International Development of the House of Commons (Nov. 28, 2002), available at http://
www. publications.parliament.uk/pa/cm200203/cmselect/cmintdev/84/84ap09.htm (where it is
stated that " [ Hollowing the convening of the Loya Jirga in Kabul in June 2002 and the subsequent
establishment of an Afghan transitional government on 19 June 2002 . . . the ICRC no longer
views the ongoing military operations in Afghanistan directed against suspected Taliban or other
armed groups as an international armed conflict.").
19. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
20. Michael Walzer, Just and Unjust Wars xix (2000).
21. John B. Bellinger III & Vijay M. Padmanabhan, Detention Operations in Contemporary
Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 AMERICAN
Journal of International Law 201 (2011).
22. Id. at 243.
23. Rupert Smith, The Utility of Force: The Art of War in the Modern World 3-4
(2007).
24. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3.
25. Ronald Reagan, The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on
the Protection of War Victims: Letter of Transmittal, 81 AMERICAN JOURNAL OF INTERNATIONAL
Law 910 (1987).
26. DlNSTEIN, supra note 2, at 297.
27. Nils Melzer, International Committee of the Red Cross, Interpretive Guid-
ance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (2009).
28. Kenneth W. Watkin, Opportunity Lost: Organized Armed Groups and the ICRC "Direct
Participation in Hostilities" Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF
International Law and Politics 641 (2010).
29. See Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execu-
tions, Study on Targeted Killings 1 67 ', Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6
(May 28, 2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/
hrcouncil/docs/ 14session/A.HRC. 14.24.Add6.pdf.
30. See Afghanistan Civilian Casualties: Year by Year, Month by Month, THE GUARDIAN, http://
www.guardian.co.uk/news/datablog/2010/aug/10/afghanistan-civilian-casualties-statistics (last
visited Nov. 9, 2011).
31. MICHAEL N. SCHMITT, CHARLES H.B. GARRAWAY & YORAM DlNSTEIN, THE MANUAL
ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT WITH COMMENTARY (2006), available
at http://www.dur.ac.uk/resources/law/NIACManualIYBHRl 5th.pdf.
12
PART II
OVERVIEW: THE LAW IN NON-
INTERNATIONAL ARMED CONFLICTS
II
Will-o'-the-Wisp? The Search for Law in
Non-International Armed Conflicts
John F. Murphy 1
In his remarks as a member of the Types of NIACs and Applicable Law Panel at
the Naval War College's International Law Conference on Non-International
Armed Conflict in the 21st Century, held from June 21 to 23, 201 1, David Graham de-
scribed the law of non-international armed conflict as being located at the "vanish-
ing point of the law of war."
This is not surprising, because, as Graham further noted, States resist the appli-
cation of international law to their struggles with rebels. In particular, they resist
according status to rebels by applying the law of armed conflict (LOAC) to them.
Rather, they prefer to deal with rebels under their own national criminal laws, free
from any constraints that might be imposed by the law of armed conflict. For ex-
ample, Charles Garraway, speaking on the same panel as Graham, pointed out that
the United Kingdom never acknowledged "the Troubles" in Northern Ireland as
an "armed conflict" to which the law of armed conflict might apply.
From a historical perspective, express treaty law governing non-international
armed conflict was formerly virtually non-existent. After the carnage of World
War II, and the extreme brutality of the Nazi Germany forces, however, there was a
* Professor of Law, Villanova University School of Law. I want to acknowledge the excellent re-
search assistance of Bernard G. Dennis and Megan L. O'Rourke, both second-year students at the
Villanova University School of Law.
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
marked change of attitude. As reported by Gary D. Solis in his 2010 magisterial
treatise:
The trainers of the 1 949 Conventions determined that there must be some minimal in-
ternational humanitarian protections for the victims of internal armed conflicts — con-
flicts occurring within one state's borders, not involving a second nation. World War II
revealed the stark absence of protections for civilians in wartime. To raise new
protections would involve a departure from Geneva's previously uninterrupted fixa-
tion on conflicts between states and a certain disregard of the long-entrenched act of
state doctrine. The international community was unanimous, however, that it could
not stand by while depredations such as those committed by the Nazis took place in
future conflicts, internal or not. Not even in the United Nations Charter is there a simi-
lar effort to regulate intrastate armed force. 1
The result was Common Article 3 of the 1949 Geneva Conventions. 2 It is the
only article in the Geneva Conventions that covers internal armed conflict, and
"when common Article 3 applies, no other part of the 1949 Geneva Conventions
applies" 1. Common Article 3 provides:
In the case of armed conflict not of an international character occurring in the territory
of one of the High Contracting Parties, each Party to the conflict shall be bound to ap-
ply, at a minimum, the following provisions:
( 1 ) Persons taking no active part in the hostilities, including members of armed forces,
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely ....
As Solis notes, "There follows a brief list of prohibitions, acknowledged to be in-
complete: violence to life and person, in particular murder, mutilation, cruel treat-
ment, and torture; the taking of hostages; humiliating and degrading treatment;
and the passing of sentences without previous judgments from regularly constituted
courts." 4 The positive obligation that Common Article 3 imposes on States parties to
the Geneva Conventions is, in non-international armed conflicts, to treat those who
are hors de combat (out of the fight) humanely. The drafters of Common Article 3 de-
cided, however, not to elaborate on the meaning of "humane treatment." 5
The International Committee of the Red Cross's (ICRC's) study of customary
international law does provide generalized guidance as to what constitutes humane
treatment:
The actual meaning of "humane treatment" is not spelled out The requirement . . .
is an overarching concept. It is generally understood that the detailed rules found in
16
John F. Murphy
international humanitarian law and human rights law give expression to the meaning
of "humane treatment." . . . However, these rules do not necessarily express the full
meaning of what is meant by humane treatment, as this notion develops over time un-
der the influence of changes in society. 6
By its terms, Common Article 3 applies only to non-international armed con-
flicts. As shall be seen below, however, international and national court decisions
have declared that its humanitarian norms are so basic that, today, Common Arti-
cle 3 extends to international armed conflicts as well.
At this early stage in this essay, it is important to note that the international and
national jurisprudence that has declared Common Article 3 extends to interna-
tional armed conflict illustrates a major difficulty with Common Article 3: because
of its sparse wording and inherent ambiguities, Common Article 3 raises more
questions than it answers, and, in particular, these include issues of when it applies
and whether it can be the basis for criminal prosecutions in international or na-
tional tribunals.
Before we turn to some of these issues, we need to note the second primary
source of treaty law on non-international armed conflicts, Additional Protocol II
to the 1949 Geneva Conventions. 7 Like Additional Protocol I, 8 which concerns in-
ternational armed conflicts, Additional Protocol II is a supplement to the 1949
Geneva Conventions and does not amend or replace any part of them. 9 Although
Additional Protocol II has 166 States parties, 10 a number of major States, including
the United States and Israel, for example, are not parties, and it is unclear what pro-
visions, if any, of the Protocol represent customary international law. 11 Moreover,
Additional Protocol II is a good example of the unwillingness of States to be
governed by international law in their internal conflicts with rebel groups. This is
because the "threshold" of applicability of Protocol II to a non-international
armed conflict is extremely high. Under Article 1(1), Protocol II only applies to
conflicts between the armed forces of a State party "and dissident armed forces or
other organized armed groups which, under responsible command, exercise such
control over a part of the territory as to enable them to carry out sustained and con-
certed military operations and to implement this Protocol." Paragraph 2 of
Article 1 provides that the Protocol "shall not apply to situations of internal distur-
bances and tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflicts."
The result of these explicit limitations is that Additional Protocol II is basically a
non-operational treaty. As one commentator has noted, the international criminal
tribunals for the former Yugoslavia and for Rwanda
17
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
have produced very little jurisprudence related to Additional Protocol II . . . and no ac-
cused has been convicted for a violation of the Protocol. . . . The limited categories of
armed conflicts to which Additional Protocol II may be said to apply and doubts as to
the extent to which it is now part of customary international law have deterred the
Prosecution from entering the realm of Additional Protocol II with much enthusiasm,
preferring instead to rely on common Article 3 . . . . 12
Similarly, George Aldrich, who was the head of the U.S. delegation to the negotia-
tions on the Protocols, has written dismissively: "Protocol II . . . affords very lim-
ited protections and has escape clauses designed to make its applicability easily
deniable. In the end, the only useful result of Protocol II may be to make it some-
what more likely that [Common] Article 3 . . . may be found applicable in lieu of
Protocol II." 13
/. Filling the Gaps in and Expanding the Coverage of
Common Article 3
Jean-Philippe Lavoyer, a former head of the ICRC's Legal Division, has contended
that the current law of armed conflict is not the major problem, but rather it is the
failure to implement it in good faith. 14 This seems clear, but there are at the least
major differences as to interpretation of the existing rules, even among the leading
experts of developed Western States, to say nothing of on a worldwide basis. Ideally,
these ambiguities would be resolved by international negotiations to revise the
existing law. However, as Dr. Lavoyer has noted, the risk of this route is that it
might open Pandora's box and result in a much less rather than more satisfactory
law of armed conflict. 15
As to gaps in Common Article 3, it is important to note that neither the Geneva
Conventions, including Common Article 3, nor Additional Protocol I contains a
definition of an "armed conflict." In contrast, as we have seen, Additional Protocol
II, in paragraphs 1 and 2 of Article 1, defines non-international armed conflicts in
such a way as to sharply limit the scope of the Protocol. But in 1995, in the Tadic In-
terlocutory Appeal on Jurisdiction, 16 the International Criminal Tribunal for the
former Yugoslavia (ICTY) stepped into the breach and addressed the preliminary
issue of the existence of an armed conflict in response to a contention by the defen-
dant that there had been no active hostilities in the area of the alleged crimes at the
relevant time:
[W]e find that an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authorities
and organized armed groups or between such groups within a State. International
18
John F. Murphy
humanitarian law applies from the initiation of such armed conflicts and extends be-
yond the cessation of hostilities until a general conclusion of peace is reached; or, in the
case of internal conflicts, a peaceful settlement is achieved. Until that moment, interna-
tional humanitarian law continues to apply in the whole territory of the warring States
or, in the case of internal conflicts, the whole territory under the control of a party,
whether or not actual combat takes place there. 17
This definition covers both international and non-international conflicts. There
is a question whether under it, the U.S. conflict with Al-Qaeda qualifies as an
armed conflict. As I suggested in another forum,
[t]he only time this conflict could have qualified as an international armed conflict
would have been when the United States invaded Afghanistan in 2001 and then only to
the extent that Al-Qaeda forces were integrated into the Taliban forces, the de facto
army of Afghanistan. At present . . . both the Taliban and Al-Qaeda are fighting as in-
surgents in Afghanistan, and it is arguable that the conflict there now is an internal
armed conflict. 18
By now it is well known that in Hamdan v. Rumsfeld 19 the Supreme Court re-
jected the assertion by the U.S. government that since Al-Qaeda was not a State and
had not accepted that it would be governed by the rules set forth in the Geneva
Conventions, its affiliates could not invoke their protections. Rather, a plurality of
the Court held that the so-called "war on terror" was a non-international armed
conflict, and therefore that at a minimum Common Article 3 applies to the conflict
with Al-Qaeda. To be sure, this holding has been subject to considerable criticism,
best illustrated perhaps by Yoram Dinstein's argument that "from the vantage
point of international law ... a non-international armed conflict cannot possibly
assume global proportions." 20 There are supporters of the Court's holding, how-
ever, and there is no consensus on this issue. 21
In light of current developments, the distinction between international and
non-international armed conflict maybe becoming irrelevant, at least as long as an
"armed conflict" is present. As Kenneth Watkin has noted, there is a "trend under
humanitarian law to apply the established rules for governing international armed
conflict to its non-international counterpart." 22 This trend, however, has not been
based on the conclusion of new conventions, or even the revision of old conventions,
on the law of armed conflict. Rather, it has been based on international judicial deci-
sions, especially the decision of the ICTY Appeals Chamber in Prosecutor v. Tadic,
which claimed in 1995 that "it cannot be denied that customary rules have devel-
oped to govern internal strife." 23 The Tribunal identified some of these rules as
covering
19
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
such areas as protection or civilians from hostilities, in particular from indiscriminate
attacks, protection of civilian objects, in particular cultural property, protection of all
those who do not (or no longer) take active part in hostilities, as well as prohibition of
means of warfare proscribed in international armed conflicts and ban of certain
methods of conducting hostilities. 24
The ICRC has also actively promoted the idea of applying the rules governing
international armed conflict to non-international armed conflict through the cus-
tomary international law process, especially in its two-volume Customary Interna-
tional Humanitarian Law study. 25 Customary international law has long played an
important role in the development of the law of armed conflict, as illustrated by
the Martens Clause, which was named after Frederick de Martens, a leading Russian
international lawyer who was a Russian delegate to the Hague Peace Conferences
of 1889 and 1907. The Martens Clause first appeared in the preambles of Hague
Convention (II) of 1899 and Hague Convention (IV) of 1907 Respecting the Laws
and Customs of War on Land. 26 A recent example of the Martens Clause may be
found in Article 1(2) of Protocol I of 1977, which reads as follows: "In cases not
covered by this Protocol or by other international agreements, civilians and com-
batants remain under the protection and authority of the principles of interna-
tional law derived from established custom, from the principles of humanity and
from the dictates of public conscience."
It should be noted, however, that the nature of the customary international law
process has become increasingly controversial. Patrick Kelly, a leading critic, has
suggested that in many — perhaps most — instances of alleged customary interna-
tional law norms, there may be little clear evidence that the vast majority of States
have accepted the norm as a legal obligation. 27 The result is that, according to Kelly,
"much of international law is announced in books and articles with little input
from nations .... Much of CIL [customary international law] is a fiction." 28 It
should come as no surprise therefore that the methodology employed by the ICRC
in its study of customary international humanitarian law has itself come under at-
tack — most particularly, in the November 3, 2006 joint letter from John Bellinger
III, Legal Adviser, U.S. Department of State, and William J. Haynes, General Coun-
sel, U.S. Department of Defense, to Dr. Jakob Kellenberger, the President of the
ICRC, setting forth the U.S. government's "initial reactions" to the ICRC's study. 29
The letter states that "based on our review so far, we are concerned about the meth-
odology used to ascertain rules and about whether the authors have proffered suffi-
cient facts and evidence to support those rules." Although noting that "[g]iven the
Study's large scope, we have not yet been able to complete a detailed review of its
conclusions," the authors go on to state that they thought it would be "constructive
to outline some of our basic methodological concerns and, by examining a few of
20
John F. Murphy
the rules set forth in the Study, to illustrate how these flaws call into question some
of the Study's conclusions." 30
A detailed discussion of the authors' concerns is beyond the scope of this essay.
For present purposes it suffices to note that the letter finds fault with both the
study's assessment of State practice and its approach to the opinio juris require-
ment. The authors also find fault with the study's formulation of the rules and its
commentary. Significantly, the letter finds that these faults contribute to
two more general errors in the Study that are of particular concern to the United States:
First, the assertion that a significant number of rules contained in the Additional Pro-
tocols to the Geneva Conventions have achieved the status of customary international
law applicable to all States, including with respect to a significant number of States (in-
cluding the United States and a number of other States that have been involved in
armed conflict since the Protocols entered into force) that have declined to become a
party to those Protocols; and
Second, the assertion that certain rules contained in the Geneva Conventions and the
Additional Protocols have become binding as a matter of customary international law
in internal armed conflict notwithstanding the fact that there is little evidence in sup-
port of those propositions. 31
In closing the letter the authors indicated their "appreciation for the ICRC's con-
tinued efforts in this important area, and hope that the material provided in this
letter and in the attachment will initiate a constructive, in-depth dialogue with the
ICRC and others on the subject." 32
In July 2007, Jean-Marie Henckaerts responded to the Bellinger/Haynes letter. 33
His response focused largely on methodological issues and, following the structure
of the U.S. comments, addressed the following questions:
1 . What density of practice is required for the formation of customary international
law and what types of practice are relevant?
2. How did the Study assess the existence of opinio juris 7 .
3. What is the weight of the commentaries on the rules?
4. What are the broader implications of the Study with respect to Additional Proto-
cols I and II and the law on non-international armed conflicts in particular?
21
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
Because U.S. comments also addressed four particular rules of the study,
Henckaerts's response dealt with the main aspects of those comments as part of the
discussion of the methodological issues. The rules included "Rule 31 (protection of
humanitarian relief personnel), Rule 45 (prohibition on causing long-term wide-
spread and severe damage to the environment), Rule 78 (prohibition of the use of
antipersonnel exploding bullets) and Rule 157 (right to establish universal juris-
diction over war crimes)." 34
As with respect to the Bellinger/Haynes letter, this is not the time or place to set
forth a detailed discussion of Henckaerts's responses to the U.S. concerns. For
present purposes, it suffices to note that the ICRC rejects the U.S. contention that
there is little evidence to support the assertion that certain rules in the Geneva Con-
ventions and the Additional Protocols have become binding as a matter of custom-
ary international law in internal armed conflict. On the contrary, in the ICRC view:
[T]he conclusion of the Study that many rules contained in the Geneva Conventions
and the Additional Protocols have become binding as a matter of customary interna-
tional law in non-international armed conflict is the result of state practice to this
effect. . . .
[Developments of international humanitarian law since the wars in the former
Yugoslavia and Rwanda point towards an application of many areas of humanitarian
law to non-international armed conflicts. For example, every humanitarian law
treaty adopted since 1996 has been made applicable to both international and non-
international armed conflicts. . . .
The criminal tribunals and courts set up, first for the former Yugoslavia and Rwanda
and later for Sierra Leone, deal exclusively or mostly with violations committed in non-
international armed conflicts. Similarly, the investigations and prosecutions currently
under way before the International Criminal Court are related to violations committed
in situations of internal armed conflict. These developments are also sustained by
other practice such as military manuals, national legislation and case-law, official
statements and resolutions of international organizations and conferences. In this re-
spect particular care was taken in Volume I to identify specific practice related to
non-international armed conflict and, on that basis, to provide a separate analysis of
the customary nature of the rules in such conflicts. Finally, where practice was less ex-
tensive in non-international armed conflicts, the corresponding rule is acknowledged
to be only "arguably" applicable in non-international armed conflicts.
When it comes to "operational practice" related to non-international armed conflicts,
there is probably a large mix of official practice supporting the rules and of their out-
right violation. To suggest, therefore, that there is not enough practice to sustain such a
broad conclusion is to confound the value of existing "positive" practice with the many
22
John F. Murphy
violations of the law in non-international armed conflicts. This would mean that we let
violators dictate the law or stand in the way of rules emerging. The result would be that
a whole range of heinous practices committed in non-international armed conflict
would no longer be considered unlawful and that commanders ordering such practices
would no longer be responsible for them. This is not what states have wanted. They
have wanted the law to apply to non-international armed conflicts and they have
wanted commanders to be responsible and accountable. 35
The Bellinger/Haynes letter, in challenging the ICRC study's assertion that cer-
tain rules contained in the Geneva Conventions and the Additional Protocols have
become binding as a matter of customary international law in internal armed con-
flict, claims that "there is little evidence in support of those propositions." 36 The
Henckaerts response attempts to provide such evidence. First, it correctly notes
that "every humanitarian law treaty adopted since 1996 has been made applicable
to both international and non-international armed conflict." 37 But none of these
treaties extends any of the provisions of the Geneva Conventions or of the Addi-
tional Protocols to non-international armed conflict, so the relevance of this State
practice to the issue is questionable at best.
Similarly, it is, of course, correct that the International Criminal Tribunals for
the former Yugoslavia and Rwanda, as well as the globally focused International
Criminal Court and the hybrid tribunal for Sierra Leone, deal exclusively or mostly
with violations committed in non-international armed conflicts. The basic issue
faced by these various tribunals is whether the concept of war crimes and grave
breaches are applicable in internal as well as international armed conflict. Resolu-
tion of this issue in turn depends upon the statutes of the various tribunals and the
tribunals' interpretation of their terms.
As Gary Solis has noted, the ICTY Appeals Chamber, in its decision in the Tadic
case, first answered the basic question in the negative. According to the Appeals
Chamber, " [we] must conclude that, in the present state of development of the law,
Article 2 of the [ICTY] Statute ["Grave breaches of the Geneva Conventions of 1949"]
only applies to offences committed within the context of international armed con-
flicts." 38 By its decision the Appeals Chamber reversed the Trial Chamber's ruling
to the contrary. At the same time, later in its decision, in dicta, the Appeals Chamber
foreshadowed later change when it stated,
[W]e have no doubt that they [violations of rules of warfare in international law] entail
individual responsibility, regardless of whether they are committed in internal or inter-
national armed conflicts. Principles and rules of humanitarian law reflect "elementary
considerations of humanity" widely recognized as the mandatory minimum for con-
duct in armed conflicts of any kind. 39
23
Will-o y -the-Wisp? The Search for Law in Non-International Armed Conflicts
As Soils notes, six years later the Appeals Chamber took the step it had fore-
shadowed in its dicta in Tadic. 40 It ruled in the Celebici case that "to maintain a le-
gal distinction between the two legal regimes and their criminal consequences in
respect ot similarly egregious acts because of the differences in the nature of the
conflicts would ignore the very purpose of the Geneva Conventions." 41
Many commentators welcomed the Celebici ruling. Guenael Mettraux, for ex-
ample, opined that "[t]he acknowledgement by the ad hoc [Yugoslav and Rwanda]
Tribunals that much of the law of international armed conflicts would apply in the
context of internal armed conflicts may be one of their most significant jurispru-
dential achievements, as far as war crimes are concerned." 42 For his part, Theodor
Meron emphatically stated, "There is no moral justification, and no truly persua-
sive legal reason, for treating perpetrators of atrocities in internal conflicts more
leniently than those engaged in international wars." 43
This commentator, however, is concerned that both the Yugoslav and Rwanda
tribunals and commentators such as Mettraux and Meron may be setting forth the
de legeferenda rather than the lex lata. To put it somewhat differently, they may be
failing to distinguish between the is and the ought. There would seem to be compel-
ling reasons for applying much of the law of international armed conflict in the
context of non-international armed conflicts, but it is not clear that States, acting
through treaties or the customary international law process, have done so. Neither
judges on the Yugoslav and Rwanda tribunals nor prominent scholars, despite the
important roles they play in the international legal process in general, have been
endowed with the capacity to make that extension of the law.
On the other hand, Solis may be on sounder ground when he reports that " [ t] he
domestic legislation of fifty-four states criminalizes serious violations of LOAC in
internal armed conflicts." 44 Such legislation is generally regarded as constituting a
form of State practice that may contribute to the formulation of a customary inter-
national law norm. Moreover, the binding nature of such legislation in the domes-
tic legal system of the acting State may supply evidence of opinio juris, acceptance of
the practice as law, the second, and perhaps most important, element of customary
international law. 45
Solis also points to the United Kingdom's Manual of the Law of Armed Conflict
in support of the proposition that customary international law provides for war
crimes and grave breaches in non-international armed conflicts. 46 He quotes the
Manual as follows:
Although the treaties governing internal armed conflict contain no grave breach provi-
sions, customary international law recognizes that serious violations of those treaties
24
John F. Murphy
can amount to punishable war crimes. It is now recognized that there is a growing area
of conduct that is criminal in both international and internal armed conflict. . . . 47
Yoram Dinstein has applauded reliance on legislative codes and military manuals
as illustrations of State practice: "Irrefutably, legislative codes and military Manu-
als (i.e., binding instructions to the armed forces) are invaluable sources of genuine
State practice." 48 It is noteworthy, however, that Solis cites and quotes only the
U.K. Manual. It is not clear, therefore, whether the position of the U.K. Manual has
been adopted in the manuals of other major military powers.
In any event, it is likely that the challenges contained in the Bellinger/Haynes
letter to the alleged two general errors in the ICRC study will not be successful. This
is because the two positions of the ICRC study are so attractive as de lege ferenda
that they will eventually be accepted as the lex lata. The reality is that Common
Article 3 and Protocol II are clearly inadequate to govern non-international armed
conflicts, and selective extension of the legal regime governing international armed
conflicts to supplement the current law governing non-international armed
conflicts makes enormous good sense. Ideally, of course, this extension should be
effected by the conclusion of new — or the revision of current — global treaties. But
if this method of extension is a mission impossible, as the evidence convincingly
demonstrates, then customary international law methodology will have to be em-
ployed, even if there is continuing disagreement as to exactly what that methodol-
ogy entails.
II. Rethinking the Possible Benefits of Additional Protocol II
Perhaps it is time for the United States to reevaluate the possible benefits of becom-
ing a party to Additional Protocol II. As indicated above, the primary criticism of
Additional Protocol II has been that its threshold of applicability is too high. It
should be noted, however, that when President Ronald Reagan submitted Addi-
tional Protocol II to the Senate for its advice and consent to ratification, 49 he did so
with a declaration that read: "The United States declares that it will apply this Pro-
tocol only to those conflicts covered by Article 3 common to the Geneva Conven-
tion of 12 August 1949 and to all such conflicts, and encourages all other States to
do likewise." Secretary of State George P. Shultz's Letter of Submittal to President
Reagan of December 13, 1986 describes the reasons for the declaration:
The final text of Protocol II did not meet all the desires of the United States and other
western delegations. In particular, the Protocol only applies to internal conflicts in which
dissident armed groups are under responsible command and exercise control over such a
part of the national territory as to carry out sustained and concerted military operations.
25
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
This is a narrower scope than we would have desired, and has the effect of excluding
many internal conflicts in which dissident armed groups occupy no significant terri-
tory but conduct sporadic guerrilla operations over a wide area. We are therefore rec-
ommending that US ratification be subject to an understanding declaring that the
United States will apply the Protocol to all conflicts covered by Article 3 common to the
1949 Conventions (and only such conflicts), which will include all non-international
armed conflicts as traditionally defined (but not internal disturbances, riots and
sporadic acts of violence). This understanding will also have the effect of treating as
non-international these so-called "wars of national liberation" described in Article
1(4) of Protocol I which fail to meet the traditional test of an international conflict. 50
The approach of the Reagan administration, therefore, would resolve the pri-
mary problem of Additional Protocol II by declining to follow the provisions of Ar-
ticle 1(1) of Additional Protocol II that would severely limit its applicability, opting
instead to apply its other provisions to all non-international armed conflict cov-
ered by Common Article 3. It also would counter the most unacceptable — to the
United States — aspect of Additional Protocol I by treating as non-international the
"wars of national liberation" that are described and treated in Article 1(4) of Addi-
tional Protocol I as international armed conflicts. Such an approach might serve to
turn Additional Protocol II from its current status as a basically non-operational
treaty to one that could usefully be applied to many of the internal conflicts charac-
teristic of today's armed conflicts, and a treaty that could enhance and strengthen
the legal regime governing non-international armed conflicts.
The report of the Department of State on Additional Protocol II, transmitted by
President Reagan with the Protocol to the Senate, 51 contains a detailed analysis of
the various provisions of the Protocol. In his Letter of Submittal to President Reagan,
Secretary of State George Shultz spells out the ways in which the Protocol
was designed to expand and refine the basic humanitarian provisions contained in
Article 3 common to the four 1949 Geneva Conventions with respect to non-international
conflicts. While the Protocol does not (and should not) attempt to apply to such
conflicts all the protections prescribed by the Conventions for international armed
conflicts, such as prisoner-of-war treatment for captured combatants, it does attempt
to guarantee that certain fundamental protections be observed, including: (1) humane
treatment for detained persons, such as protection from violence, torture, and collec-
tive punishment; (2) protection from intentional attack, hostage-taking and acts of ter-
rorism of persons who take no part in hostilities; (3) special protection for children to
provide for their safety and education and to preclude their participation in hostilities;
(4) fundamental due process for persons against whom sentences are to be passed or
penalties executed; (5) protection and appropriate care for the sick and wounded, and
medical units which assist them; and (6) protection of the civilian population from
military attack, acts of terror, deliberative starvation, and attacks against installations
26
John F. Murphy
containing dangerous forces. In each case, Protocol II expands and makes more spe-
cific the basic guarantees of common Article 3 of the 1949 Conventions. 52
Hence, application of Additional Protocol II to non-international armed con-
flicts would greatly strengthen the humanitarian protections of Common Article 3,
and, as President Reagan suggested in his Letter of Transmittal, "[i]f these funda-
mental rules were observed, many of the worst human tragedies of current internal
armed conflicts could be avoided." 53
It is worth noting that on March 7, 2011, the Obama administration issued a
White House press release in which it indicated its strong support for the ratifica-
tion of Additional Protocol II and its intention to apply the principles of Article 75
of Protocol I to "any individual it detains in an international armed conflict." 54 In
pertinent part, the press release reads as follows:
Support for a Strong International Legal Framework
Because of the vital importance of the rule of law to the effectiveness and legitimacy of
our national security policy, the Administration is announcing our support for two
important components of the international legal framework that covers armed con-
flicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva
Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair
trial guarantees that apply in the context of non-international armed conflicts, was
originally submitted to the Senate for approval by President Reagan in 1987. The Ad-
ministration urges the Senate to act as soon as practicable on this Protocol, to which
165 States are a party. An extensive interagency review concluded that United States
military practice is already consistent with the Protocol's provisions. Joining the treaty
would not only assist us in continuing to exercise leadership in the international com-
munity in developing the law of armed conflict, but would also allow us to reaffirm our
commitment to humane treatment in, and compliance with legal standards for, the
conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for per-
sons in the hands of opposing forces in an international armed conflict, is similarly im-
portant to the international legal framework. Although the Administration continues
to have significant concerns with Additional Protocol I, Article 75 is a provision of the
treaty that is consistent with our current policies and practice and is one that the
United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreat-
ment of captured U.S. military personnel. The U.S. Government will therefore choose
27
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
out of a sense of legal obligation to treat the principles set forth in Article 75 as applica-
ble to any individual it detains in an international armed conflict, and expects all other
nations to adhere to these principles as well.-"
The comments of the Reagan administration and more recently of the Obama
administration would seem to belie the dismissive remarks of George Aldrich re-
garding the value of Additional Protocol II, reported earlier in this essay. 56 In sharp
contrast to the Aldrich position, both the Reagan and Obama administrations state
forcefully that ratification of Additional Protocol II would greatly expand on and
strengthen the humanitarian provisions of Common Article 3 of the Geneva Con-
ventions. President Reagan pointed out that Additional Protocol II "makes clear
that any deliberate killing of a noncombatant in the course of a non-international
armed conflict is a violation of the laws of war and a crime against humanity, and is
therefore also punishable as murder." 57
In another part of his message President Reagan foreshadows the approach
more specifically adopted by the Obama administration with respect to Additional
Protocol I. While emphatically rejecting ratification of Additional Protocol I, he
stated at the same time a desire to
devise an alternative reference for the positive provisions of Protocol I that could be of
real humanitarian benefit if generally observed by parties to international armed con-
flicts. We are therefore in the process of consulting with our allies to develop appropri-
ate methods for incorporating these positive provisions into the rules that govern our
military operations, and as customary international law. I will advise the Senate of the
results of this initiative as soon as it is possible to do so. 58
It appears that President Reagan never advised the Senate of the results of his
administration's initiative. For its part, the Obama administration appears to have
acted without consulting allies — although this is not clear — in deciding to treat
Article 75 of Additional Protocol I as binding on the United States and choosing to
"treat the principles set forth in Article 75 as applicable to any individual it detains
in an international armed conflict," and expecting "all other nations to adhere to
these principles as well." 59 If this policy is implemented by the Obama administra-
tion, this would greatly strengthen the argument that Article 75 is part of custom-
ary international law.
As to whether the Senate will finally give its advice and consent to U.S. ratifica-
tion of Additional Protocol II, it is hard to be optimistic, because the Senate has so
many other issues before it that are likely to receive higher priority. But it appears
the Reagan and Obama administrations have set forth a convincing case for the
Senate's giving its advice and consent to ratification.
28
John F. Murphy
U.S. ratification of Additional Protocol II and application of its substantive
provisions to any armed conflict covered by Common Article 3 would also make
law in non-international armed conflict much less of a will-o'-the-wisp. This
would be an important step because, as Eyal Benvenisti has noted in a recent pro-
vocative essay, 60 there is currently an emerging struggle between "states engaged
in transnational armed conflict [read non-international asymmetric warfare] and
third parties — courts, international institutions, NGOs, and civil society — in de-
veloping and enforcing the law." 61
III. Who Shall Determine the Law in Non-International Armed Conflicts?
As noted earlier in this essay, the International Criminal Tribunal for the former
Yugoslavia has concluded in its decisions that "customary rules have developed to
govern internal strife." 62 For his part, Benvenisti states emphatically that the appli-
cability of international criminal law
to internal armed conflicts must be attributed to the jurisprudence of the International
Criminal Tribunal of the former Yugoslavia ("ICTY"), which has in only a few years of
adjudicating war crimes in the former Yugoslavia virtually rewritten the law on internal
armed conflicts. By formally asserting the law[']s customary status, the ICTY overcame
years of governmental resistance to regulating methods for fighting insurgents. 63
Benvenisti believes that the increased involvement of various third-party actors,
including domestic courts, foreign governments and courts, international organi-
zations and international tribunals, humanitarian NGOs, and domestic and global
civil society, in indirect monitoring, lawmaking and enforcement functions consti-
tutes a major challenge to States. As Benvenisti suggests:
[T]he intensified involvement of third parties creates a new conflict between the con-
ventional armies that fight insurgents or terrorists and seek more discretion and fewer
constraints and the third parties who insist on maintaining and even increasing con-
straints in warfare. We might call it a conflict between the "IHL camp," that emphasizes
the humanitarian aim of the jus in bello, which they refer to as International Humani-
tarian Law, and the "LOAC camp," that wishes to point out that the Law of Armed
Conflict is primarily designed to regulate the relations between fighting armies and
therefore must take military concerns seriously into account. The LOAC camp insists
that this "lawfare" is not only hypocritical but also perilous: that the IHL camp is being
manipulated by the terrorists, who endanger the population on whose behalf they osten-
sibly fight by their abuse of civilian immunities. In a sense, and certainly unwillingly, the
IHL camp becomes a strategic ally of the terrorists because the terrorists benefit indi-
rectly from whatever constraints the IHL camp would impose. 64
29
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
It is worthwhile quoting Benvenisti's summary of the arguments of the third-
party actors at some length, because they couldn't be more in sharp contrast to the
arguments advanced by governments, and their supporters, engaged in the asym-
metric warfare characteristic of non-international armed conflict:
In general, third party actors, and certainly third party norm entrepreneurs, suggest
that the legal restraints on transnational conflict must treat the stronger party as re-
sponsible for positively protecting the population in the theater of operation from
harm because the stronger party often exclusively, has effective — even if only virtual —
control over the population. In fact, with recourse to new types of weaponry and re-
connaissance tools, with 24/7 presence of unmanned aerial vehicles ("UAV") over for-
eign territory, contemporary armies often have the capacity to control some of the
activities of the population on the ground effectively as an occupying power. Such con-
trol can perhaps be regarded as virtual occupation. As the law stands, during conven-
tional international armed conflict, obligations to occupied populations are more
demanding than those toward foreign civilians in the combat zone.
This last point requires explanation: in symmetric warfare, the attacker's power does
not amount to an ability to fully control the lives of the enemy's population. The de-
fending government is still in control and in fact forcefully resists the attacker's effort to
gain exclusivity. Lacking such exclusive control, there is no basis to impose an obliga-
tion on the attacking army to ensure enemy civilians' lives (protecting them, for exam-
ple, from internal ethnic conflicts). Their army, which is still in control, has the duty to
ensure their rights. Instead, before and during the attack, the attacking army owes a
duty to respect enemy civilians' lives, consisting of the duty to avoid unnecessary harm.
In contrast, the same army will assume the duty to ensure the rights of enemy civilians
when they become subject to its effective control as prisoners of war or "protected per-
sons" in occupied territories. An obligation to ensure the civilians' rights is fundamen-
tally different from an obligation to respect them, applicable to parties to symmetric
conflicts. The vertical power relations that exist in transnational asymmetric conflicts,
particularly against non-state actors, seem to call for recognizing positive duties to-
wards those civilians, like in an occupation. Such a duty will reflect the nature and
scope of the power that the "attacking" army (during an on-going, indefinite "attack")
has over the attacked population.
The obligation to protect in transnational asymmetric armed conflict, if recognized,
would be quite demanding. It would call for three specific obligations. First, it would
require the consideration of alternatives to military action and the determination of
whether the decision to use force against legitimate military targets rather than explor-
ing non-forcible, or less-forcible alternatives, was justified under the circumstances. In
fact it would imply injecting jus ad bellum considerations, or human rights law, into
jus in bello analysis. Secondly, if there were no available alternatives, a second require-
ment would demand that the army invest significant resources to minimize harm to
30
John F. Murphy
civilians. Finally, the army would be required to conduct a transparent and account-
able investigation after the use of force.
A case in point concerns the dispute about targeted killing. This policy treats individu-
als as military targets per se, given the paucity of conventional non-human military tar-
gets of an irregular fighting force. The LOAC camp argues that armies that target
individual combatants regard them as legitimate targets in war, as there is no distinc-
tion between human and non-human military targets. But the alternative view is sensi-
tive to the fact that the laws regarded the killing of combatants as a legitimate means to
achieve military goals, rather than a goal in and of itself. As the 1 868 St. Petersburg Dec-
laration envisioned, war was not about killing combatants; wars were understood to be
fought to achieve non-human military goals and fighting was to be conducted against
an abstract, collective enemy. Therefore, it was possible to stipulate that "the only legit-
imate object which States should endeavour to accomplish during war is to weaken the
military forces of the enemy; That [sic] for this purpose it is sufficient to disable the
greatest possible number of men." Although war always involved the killing of combat-
ants, killing the adversary was never the goal. Applying this logic to the effort to pre-
empt individuals from engaging in an attack would require a consideration of whether
it is possible to disable rather than kill them. This explains why the IHL camp insists on
pausing to consider alternatives to targeted killing; something that is viewed by the
LOAC camp as injecting irrelevant requirements of human rights law into jus in bello
analysis.
The tension between governments engaged in transnational warfare and third parties
can therefore not be starker: whereas governments seek to deny or dilute the applicabil-
ity of conventional warfare obligations to transnational asymmetric conflicts, third
parties insist on their applicability and lean toward imposing even more stringent
constraints, which governments regard as impermissibly endangering their troops
and irresponsibly immunizing non- state fighters. Only time can tell if and how this
tension can be resolved. 65
In the rest of his article Benvenisti argues that the growing involvement of third
parties in the monitoring and assessment of military decisions "raises a third chal-
lenge to the legal regulation of warfare: how to regulate the exercise of discretion by
the military commander." 66 He suggests that in conventional, symmetric warfare
the parties to the conflict are presumed to promote their self-interests and not the
interests of the other government involved in the conflict. But with the pressure
from third parties to positively protect enemy civilians it has arguably become nec-
essary for governments involved in non-international armed conflicts to consider
interests other than their own. He notes that the greatly increased access to infor-
mation about such conflicts afforded by technical advances in technology and im-
proved intelligence allows third parties to assess the exercise of discretion by the
military commander. He adds,
31
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
If we accept that attacking armies in transnational asymmetric conflicts have a "duty
to ensure" the lives of civilians in the area they attack then perhaps they are expected to
treat all civilians with similar respect (obviously, such blindness would relate only to
the human rights of the relevant civilians and not to the national interests of the foreign
state). It can be expected, however, that the LOAC camp will resist such a conclusion,
stating that there is no moral or legal basis for the obligation to consider other-regarding
considerations in the absence of reciprocity and mutuality of obligations, when there is
no assurance that others are equally committed to act selflessly. 67
In the conclusion to his article, Benvenisti states that
[i]it is beyond the scope of this essay to assess if and how such a cleavage between two
visions of the law can be bridged and how the law would look in the future. Much
depends on the continued ability of courts, both domestic and international, to assert
positions independent of governments and the continued commitment of global civil
society to constrain conventional armies Even the domestic courts of those govern-
ments that engage in such conflicts resist the demand to yield authority to the execu-
tive. If these attitudes persist, it can be expected that the recourse to third parties as
partners in the regulation of transnational armed conflicts will expand. 68
By way of initial comment on some of the points made by Benvenisti, it should
be noted that, although the domestic courts of some governments that engage in
non-international asymmetric armed conflict have asserted positions independent
of their governments on the regulation of such conflicts, 69 other domestic courts,
including those of the United States, have been quite deferential to the executive
branch's decisions with respect to the conduct of hostilities in such conflicts. 70 A
good recent example of such deference by U.S. courts is the December 7, 2010 deci-
sion of the District Court for the District of Columbia dismissing a suit brought to
enjoin the targeted killing of U.S. citizen Anwar Al-Aulaqi, who was operating out
of Yemen. 71 The court ruled that the plaintiff (AJ-Aulaqi's father) did not have
standing to bring the suit and that the political question doctrine barred the court
from considering the merits of the plaintiffs suit.
In describing the arguments of third-party actors, Benvenisti states that "the legal
restraints on transnational conflict must treat the stronger party as responsible for
positively protecting the population in the theater of operation from harm because
the stronger party often exclusively, has effective — even if only virtual — control
over the population." 72 In many cases involving asymmetric non-international
armed conflicts, however, the stronger party has no such control over the popula-
tion. In Afghanistan, for example, the Taliban and Al-Qaeda forces embed them-
selves among the general population. Moreover, in Afghanistan, it is important to
note, the sovereign power is not the U.S. government or coalition forces, but the
32
John F. Murphy
Afghan government of President Karzai. Increasingly, the Karzai government has
demanded that there be no civilian casualties from drone or airplane attacks, thus
denying the coalition forces an important military advantage.
Moreover, to impose an obligation on U.S. and coalition forces, as demanded by
some third parties, to ensure that there are no civilian casualties in asymmetric
non-international armed conflicts would be a dramatic change in the law of armed
conflict and would ensure the failure of U.S. and coalition forces in Afghanistan
and in other theaters where the Taliban and Al-Qaeda are operating. The reality is
that so-called "collateral damage" to civilians is unavoidable in armed conflict, and
especially in the asymmetric non-international armed conflict characteristic of to-
day's wars. The current test under the law of armed conflict is whether the collat-
eral damage is expected to be "excessive" in relation to the concrete and direct
military advantage anticipated. 73
In a recent essay, Samuel Estreicher has helpfully emphasized that "[d] angers to
civilians during armed conflict are a joint product of both attackers and defenders,
and minimization of such harm — presumably the overriding mission of IHL —
requires establishing the right incentives for both attackers and defenders." 74
Estreicher also quotes the observation of W. Hays Parks in his "classic" article, "Air
War and the Law of War," that
Protocol I constitutes an improvement in the law of war in recognizing that an attacker
should, in most cases, give consideration to minimization of collateral civilian casual-
ties. The issue is the degree to which an attacker should assume this responsibility. If the
new rules of Protocol I are to have any credibility, the predominant responsibility must
remain with the defender, who has control over the civilian population. 75
Estreicher elaborates on Parks's point by noting that
[i]t is clear that attackers cannot, because of defender violations, claim excuse for their
non-compliance with, say, their duty to "do everything feasible to verify that the objec-
tives to be attacked are neither civilians nor civilian objects" under AP I, Article
57(2)(a)(i). But the feasibility inquiry under Article 57(2)(a)(i), or the proportionality
inquiry under Article 57(2)(a)(iii), necessarily requires that account be taken of
whether defenders have disguised military operations as civilian operations or have
deliberately embedded their military assets in close proximity to civilian areas, all in
violation of defender obligations under IHL. 76
In a subsequent, follow-up essay, 77 Estreicher focuses on the "so-called princi-
ple of 'proportionality.'" He explains that he uses
33
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
the qualifying adjective "so-called" because "proportionality" in this context is a mis-
nomer. The actual obligation, as set forth in Articles 51(5)(b) and 57(2)(b) of AP I,
speaks in terms of prohibiting (and deferring) attacks expected to cause incidental
civilian losses "which would be excessive in relation to the concrete and direct military
advantage anticipated." . . . [T]he "excessive loss" formulation is not only truer to the
text of AP I but provides a sounder, more principled basis for judging violations than
the more elastic, manipulable "proportionality" formulation. 78
The "excessive loss" formulation is a fortiori a more principled basis forjudging
violations than the requirement reportedly proposed by some third parties that
parties to asymmetric warfare "positively protect" enemy civilians. 79 To hold a mil-
itary commander to such a standard would be grossly dysfunctional, as well as
grossly unfair if violations of this standard would subject the military commander
to possible criminal or civil penalties. Hence, it is certain that despite pressure that
may be brought to bear by third parties to asymmetric armed conflicts, this stan-
dard will be rejected by the governments of States that are engaged in such con-
flicts, including most particularly that of the United States.
IV. Conclusion
The title of this essay states there is a search for law in non-international armed
conflicts. Perhaps, however, a more precise way to describe the current situation is as
a struggle for law in non-international armed conflicts. As noted by Eyal Benvenisti,
this is a struggle between States that are actively involved in non-international
armed conflict and a wide array of third-party actors, such as domestic courts,
foreign governments and courts, international organizations and international tri-
bunals, humanitarian NGOs, and domestic and global civil society. Some of these
third-party actors are promoting an agenda that, if adopted as law, could severely
restrict the military capacity of the armed forces of States to deal effectively with
Al-Qaeda and other non-State actors employing various strategies to negate the
military superiority of the States they are fighting against.
At least to some extent, these third-party actors have been able to be influential
because of the inability of States to reform and develop the law applicable to non-
international armed conflicts through the conclusion of global treaties that would
update the law in such a way as to resolve the tension between humanitarian con-
siderations and the need for military efficiency. The recent efforts of the Obama ad-
ministration to carry forward the position of the Reagan administration to have the
United States finally ratify Additional Protocol II, while issuing a declaration that it
will not apply the high threshold requirements of the Protocol and will urge other
States parties to follow suit, may be a first step toward overcoming the barriers
34
John F. Murphy
to expanding and improving the law of non-international armed conflict. Should
the United States take this step, and other States follow suit, at a minimum it
should allow like-mined States to cooperate to improve the efficiency of efforts
to deal with the challenge they face in conducting asymmetric warfare, and
could perhaps lead to State practice that evolves eventually into norms of cus-
tomary international law applicable to non-international armed conflict. Failure
of States like the United States and its allies to win this struggle for law in non-
international armed conflicts with these third-party actors would have extremely
negative effects on their national security.
Notes
1 . Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law
IN WAR 97 (2010).
2. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of
Prisoners of War art. 3, Aug. 1 2, 1 949, 6 U.S.T. 33 1 6, 75 U.N.T.S. 135; Convention Relative to the
Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287.
3. SOLIS, supra note 1, at 99 (emphasis in original).
4. Jtf.at98.
5. In his treatise, id., Solis cites and quotes Jean Pictet's commentary on the Geneva Con-
ventions that it is
pointless and even dangerous to try to enumerate things with which a human being
must be provided [to constitute humane treatment] ... or to lay down in detail the
manner in which one must behave towards him in order to show that one is treating
him "humanely" .... The details of such treatment may, moreover, vary according to
circumstances . . . and to what is feasible.
Commentary to Geneva Convention I for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field 53 (Jean S. Pictet ed., 1952).
6. l Customary International Humanitarian Law Rule 87, at 307-8 (Jean-Marie
Henckaerts & Louise Doswald-Beck eds., 2005).
7. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 609,
reprinted in 16 INTERNATIONAL LEGAL MATERIALS 1422 (1977).
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3 [hereinaf-
ter Additional Protocol I].
9. See SOLIS, supra note 1, at 129.
10. See International Humanitarian Law - Treaties & Documents, http://www.icrc.org/
ihl.nsf/WebSign?ReadForm&id=475&ps=P (last visited Oct. 16, 2011).
11. For an example of a provision in Additional Protocol II that is almost surely not repre-
sentative of customary international law, see Article 13(3). Paragraph 3 of Article 13 provides
35
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
that civilians lose protection from being the object of armed attack, only "for such time as they
take a direct part in hostilities." In The Manual on the Law of Non-International Armed Conflict,
the authors state that
this limitation is not confirmed by customary international law. Such an approach
would create an imbalance between the government's armed forces on the one hand
and members ot armed groups on the other, inasmuch as the former remains legitimate
targets ( under international law) throughout the conflict. Moreover, the proposition is
impractical to implement on the ground. Ordinary soldiers would be required to make
complex and immediate assessments as to whether an individual's participation in hos-
tilities is ongoing, at a time when the facts available are incomplete or unclear.
Mil HAM N. SCHMITT, CHARLES H.B. GARRAWAY & YORAM DlNSTKIN, THE MANUAL ON THE
I \w of Non-International Armed Conflict with Commentary j 1.1.2(4) (2006) [here-
inafter NI AC Manual].
12. GuenaEl Mettraux, International Crimes and the Ad Hoc Tribunals 144
(2005), cited and quoted in SOLIS, supra note 1, at 138-39.
13. George H. Aldrich, Some Reflections on the Origins of the 1977 Geneva Protocols, in
Studies and Essays on International Humanitarian Law and Red Cross Principles in
HONOUR OF JEAN PICTET 135-36 (Christophe Swinarski ed., 1984), cited and quoted in SOLIS,
supra note 1, at 139.
14. See Jean-Philippe Lavoyer, International Humanitarian Law: Should It Be Reaffirmed,
Clarified or Developed?, in ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS 287
(Richard B. Jaques ed., 2006) (Vol. 80, U.S. Naval War College International Law Studies). For
comment on Mr. Lavoyer's article, see John F. Murphy, Enforcing the Law, in id. at 31 1.
15. See Lavoyer, supra note 14, at 302.
16. Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995) [hereinafter
Prosecutor v. Tadic].
17. M.,170.
1 8. See John F. Murphy, Mission Impossible? International Law and the Changing Character of
War, in INTERNATIONAL LAW AND THE CHANGING CHARACTER OF WAR 13, 19 (Raul A. "Pete"
Pedrozo & Daria P. Wollschlaeger eds., 2011) (Vol. 87, U.S. Naval War College International
Law Studies).
19. Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (2006).
20. See Yoram Dinstein, The Conduct of Hostilities under the Law of
International Armed Conflict 56 (2d ed. 2010).
21. For brief discussion of the conflicting views, see Murphy, supra note 18, at 17-18.
22. Kenneth Watkin, 21st Century Conflict and International Humanitarian Law: Status Quo
or Change?, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 273
(Michael N. Schmitt & Jelena Pejic eds., 2007).
23. Prosecutor v. Tadic, supra note 16, U 125.
24. Id.
25. See 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, supra note 6, at xxix.
26. Convention No. II with Respect to the Laws and Customs of War on Land, July 29, 1899,
32 Stat. 1803; Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2227.
27. See J. Patrick Kelly, The Twilight of Customary International Law, 40 VIRGINIA JOURNAL
( )l INTERNATIONAL LAW 449, 469-75 (2000).
36
John F. Murphy
28. See J. Patrick Kelly, International Law and the Shrinking Space for Domestic Politics in De-
veloping Countries, in LAW AND RIGHTS: GLOBAL PERSPECTIVES ON CONSTITUTIONALISM AND
GOVERNANCE 259, 261 (Penelope E. Andrews & Susan Bazilli eds., 2008).
29. See Letter from John Bellinger III, Legal Adviser, U.S. Dept. of State, and William J.
Haynes, General Counsel, U.S. Dept. of Defense, to Dr. Jakob Kellenberger, President, Interna-
tional Committee of the Red Cross, Regarding Customary International Law Study (Nov. 3,
2006), reprinted in 46 INTERNATIONAL LEGAL MATERIALS 514 (2007).
30. Id.
31. Mat 516.
32. Id.
33. See Jean-Marie Henckaerts, Customary International Humanitarian Law: A Response to
US Comments, 89 INTERNATIONAL REVIEW OF THE RED CROSS 473 (2007), reprinted in 46 IN-
TERNATIONAL Legal Materials 959 (2007).
34. Id. at 474.
35. Id. at 485-87.
36. Supra note 29.
37. Primary examples of such treaties may be found listed, with citations, in the NIAC
MANUAL, supra note 11, at 66. They include the 2000 Optional Protocol to the Convention on
the Rights of the Child on the Involvement of Children in Armed Conflict; the 1999 Second
Protocol to the Hague Convention of 1 954 for the Protection of Cultural Property in the Event of
Armed Conflict; the 1998 Rome Statute of the International Criminal Court; the 1997 Ottawa
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on Their Destruction; and the 1996 Amended Protocol II on Prohibitions
or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Ex-
cessively Injurious or to Have Indiscriminate Effects.
38. Prosecutor v. Tadic, supra note 16, T 84, cited and quoted in SOLIS, supra note 1, at 100
n.119.
39. Prosecutor v. Tadic, supra note 16, 1j 129, cited and quoted in SOLIS, supra note 1, at 100.
Solis adds, in footnote 120, quoting the Appeals Chamber's decision in paragraph 30, that the
migration of war crimes from international armed conflicts to non-international cannot take
place "in the form of a full and mechanical transplant of those rules to internal conflicts [but in-
stead] the general essence of those rules, and not the detailed regulation they may contain, has
become applicable to internal conflicts."
40. See SOLIS, supra note 1, at 100.
41. Prosecutor v. Delalic, IT-96-21-T, Judgment, 1f 172 (Int'l Crim. Trib. for the Former
Yugoslavia Feb. 20, 2001).
42. See METTRAUX, supra note 12, at 132.
43. Theodor Meron, International Criminalization of Internal Atrocities, 89 AMERICAN JOUR-
NAL of International Law 554, 561 ( 1995).
44. SOLIS, supra note 1, at 101, citing EVE LA HAYE, WAR CRIMES IN INTERNAL ARMED
Conflicts 170 (2008).
45. For general discussion of the customary international law process, see LORI F.
Damrosch et al, International Law: Cases and Materials 59-121 (5th ed. 2009).
46. SOLIS, supra note 1, at 101.
47. Id., citing in footnote 128, UNITED KINGDOM MINISTRY OF DEFENCE, THE MANUAL OF
the Law of Armed Conflict thi 15.32, 15.32.1 (2004).
48. See Yoram Dinstein, The ICRC Customary International Humanitarian Law Study, 36
Israel Yearbook on Human Rights l, 6 (2006).
37
Will-o'-the-Wisp? The Search for Law in Non-International Armed Conflicts
49. See A Message from the President of the United States regarding Protocol II Additional
to the 1 949 Geneva Conventions, and Relating to the Protection of Victims of Non-International
Armed Conflicts, US Government Printing Office, 100th Congress, 1st session, Treaty Doc. 100-
2, at iii { 1987) [hereinafter Message from the President].
50. letter of Submittal from Secretary of State George P. Shultz to President Ronald Reagan
( Mav 10, 1988), reprinted in id. at vii-viii.
5 1 . See Message from the President, supra note 49, at 1 .
52. Id. 11 vii.
53. Id. at iii.
54. White House, Fact Sheet: New Actions on Guantanamo and Detainee Policy 3 (Mar. 7,
201 1 ), http://www.whitehouse.gov/the-press-office/201 1/03/07/new-actions-guantanamo-bay
-and-detainee-policy [hereinafter Fact Sheet]. It is also worth noting that the same plurality of
the Supreme Court that held the "war on terror" to be a non-international armed conflict held
that the principles of Article 75 were customary international law. Hamdan v. Rumsfeld, 548
U.S. 557, 633 (2006).
55. Fact Sheet, supra note 54, at 3.
56. See Aldrich, supra note 13 and accompanying text.
57. Id.
58. Id. at iv.
59. See Fact Sheet, supra note 54, at 3.
60. Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare,
20 Duke Journal of Comparative & International Law 339 (2010).
61. Id. at 342.
62. See supra note 23 and accompanying text.
63. See Benvenisti, supra note 60, at 347.
64. Id. at 348.
65. Id. at 350-52 (emphasis in original) (citations omitted).
66. Id. at 353.
67. Id. at 356 (citation omitted).
68. Id. at 359.
69. The Supreme Court of Israel has been especially active in this respect. See, e.g., HCJ 769/
02 Public Committee against Torture in Israel v. Government of Israel (2) PD 459 [2006] (Isr.),
reprinted in 46 INTERNATIONAL LEGAL MATERIALS 373 (2007), available at http://elyonl
.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf (holding unlawful various coercive
tactics for interrogation, while avoiding specifically labeling them "torture"); HCJ 2056/04 Beit
Sourik Village Council v. Government of Israel 58(5) PD 807 [2004], reprinted in 43 INTER-
NATIONAL LEGAL MATERIALS 1099 (2004), available at http://elyonl.court.gov.il/files_eng/04/560/
020/a28/04020560.a28.pdf.
70. To be sure the Supreme Court has handed down several decisions against the U.S. gov-
ernment in cases involving the use of military commissions to prosecute alleged terrorists. See
Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rums-
feld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). But the Supreme Court has
refrained from sitting in judgment on the executive branch's conduct of military hostilities.
71. Nasser Al-Aulaqi v. Barack H. Obama, Robert M. Gates, and Leon E. Panetta, 727 F.
Supp. 2d 1 (2010).
72. See Benvenisti, supra note 60, at 350.
73. Additional Protocol I, supra note 8, arts. 51(5)(b) & 57(2)(b).
38
John F. Murphy
74. Samuel Estreicher, Privileging Asymmetric Warfare? Part I: Defender Duties under Inter-
national Humanitarian Law, 11 CHICAGO JOURNAL OF INTERNATIONAL LAW 425, 431 (2011)
(emphasis in original).
75. Id. at 432 n.20 (emphasis in original). See also W. Hays Parks, Air War and the Law of
War, 32 AIR FORCE LAW REVIEW 1, 153-54 (1990).
76. Estreicher, supra note 74, at 435 (citations omitted).
77. See Samuel Estreicher, Privileging Asymmetric Warfare (Part II)?: The "Proportionality"
Principle Under International Humanitarian Law, 12 CHICAGO JOURNAL OF INTERNATIONAL
LAW 143, 144(2011).
78. Id. at 146.
79. See Benvenisti, supra note 60, at 353.
39
PART III
TYPE OF NON-INTERNATIONAL ARMED
CONFLICTS AND THE APPLICABLE LAW
Ill
Defining Non-International Armed Conflict:
A Historically Difficult Task
David E. Graham*
As the initial speaker on the first panel of the Newport conference dealing
with non-international armed conflict (NIAC) in the twenty-first century, I
was asked to do two things. First, establish the framework for a broad and compre-
hensive discussion of NIAC by assessing, historically, the way in which the interna-
tional community has attempted to define this particular form of conflict, to
include the issue of whether there now exist various types of NIAC. Second, speak
to the U.S. practice with respect to the manner in which the United States has de-
termined whether to designate certain hostilities as NIACs.
In undertaking that mandate, I was reminded of the words of Sir Hersch
Lauterpacht: " [I] f international law is, in some ways, at the vanishing point of law,
the law of war is, perhaps even more conspicuously, at the vanishing point of inter-
national law." 1 And, given the nuances of our current subject matter, I would think
it appropriate to add to this statement: "If the law of war is at the vanishing point of
international law, then, surely, the law related to non-international armed conflict
is at the vanishing point of the law of war."
* Colonel, U.S. Army (Ret.); Executive Director, The Judge Advocate General's Legal Center and
School, U.S. Army. The author has prepared this article in his personal capacity and does not
purport to represent the views of the Department of Defense, the Department of the Army or
The Judge Advocate General's Legal Center and School.
Defining Non-International Armed Conflict: A Historically Difficult Task
My addition to the Lauterpacht quote results from the fact that the matter of
what activities do — and do not — constitute a NIAC is an exceptionally conten-
tious one. The criteria to be used in making such a determination enjoy no univer-
sal acceptance. Time and again these are said to be "evolving." Increasingly, we are
advised that today's NIAC is no longer the NIAC of old. And, by "old," commenta-
tors speak in terms of a scant ten years ago. Now, the "traditional" NIAC is said to
have been joined by what are referred to as asymmetric "transnational" armed con-
flicts. 2 So, having set forth these uncertainties surrounding the nature of NIACs,
how are we to recognize such a conflict when we see one?
In parsing this puzzle, it is best to cast a large net, beginning with an assessment
of the concept of "armed conflict" itself. Having done this, we can then move on to
examine the direction in which the international community has moved in its at-
tempt to more closely demarcate the boundaries of what is — and is not — armed
conflict of a non-international character.
Let us begin with the fact that, as surprising as it might appear, the law of war, or
the law of armed conflict as it is also known, provides no definitive definition of
"armed conflict," even though this term is specifically referenced in both Common
Article 2 and Common Article 3 of the four 1949 Geneva Conventions, articles that
deal with international and non-international armed conflict, respectively. 3 And
there exists no agreed test for assessing when certain actions have risen to the level
of an "armed conflict."
Having said this, however, it is also true that the International Committee of the
Red Cross (ICRC) Commentary on these articles (Pictet's Commentary) has histor-
ically been looked to as the principal source of their interpretation. 4 This Commen-
tary references identifiable factors to be considered when making a determination
as to whether either an international or non-international armed conflict exists.
The matter of determining the existence of a Common Article 2 international
armed conflict is, in fact, a rather straightforward one. The text of Article 2 speaks
in terms of "all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of war is not
recognized by one of them." The key here is that the use of force by opposing regu-
lar armed forces of two or more States evidences an international armed conflict.
The Commentary notes in this regard that the reality of the existence of such a con-
flict is simply not affected by the scope, duration or intensity of the hostilities in-
volved. Instead, the use of the term "armed conflict" in this context was intended to
apply to de facto hostilities, no matter their duration or how non-destructive they
actually might have been. 5
Now, having noted that determining the existence of an international armed
conflict is not that complex, I would certainly caveat this statement with the
44
David E. Graham
observation that this determinative process may become much more problematic
in those instances in which a non-international armed conflict might, at some
point, become "internationalized." This occurs when one or more external States
intervene in such hostilities. Given the focus of this article, however, the debate
over the degree of "effective" or "overall" control that a State must exercise over in-
surgent elements in order for this "internationalization" process to occur will not
be addressed. 6 Suffice it to say that the determinative factors related to interna-
tional armed conflicts contained in Pictet's Commentary really do very little to as-
sist in making a judgment as to whether certain actions may — or may not — be
designated NIACs. And the ability to make such a determination is, of course, our
ultimate goal.
Given this fact, the starting point in assessing the existence of a NIAC must nec-
essarily be Common Article 3: "In the case of armed conflict not of an international
character occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following provi-
sions . . . ." The difficulty, historically, in turning to Article 3 has been, of course,
that neither the text nor the commentary to this article provides definitive guid-
ance regarding what is meant by the phrase "conflict not of an international char-
acter." Pictet, himself, has noted that the negotiators of the 1949 Conventions
"deliberately refrained from defining the non-international armed conflicts which
were the subject of Common Article 3." 7 Thus, it has never been clear what level of
violence must be reached — and how protracted the actions in issue must be — in
order for such hostilities to be deemed a non-international armed conflict. Internal
situations that have reached a very high level of violence have often been regarded,
certainly by the States in which such violence has occurred, as mere banditry — acts
which have not achieved the threshold of "armed conflict." 8
This uncertainty has persisted over the years, notwithstanding the fact that
Pictet's Commentary offered what he referred to as some "convenient criteria" for
determining the existence of a NIAC:
(1) That the Party in revolt against the de jure Government possesses an organized
military force, an authority responsible for its acts, acting within a determinate terri-
tory and having the means of respecting and ensuring respect for the Convention.
(2) That the legal Government is obliged to have recourse to the regular military
forces against insurgents organized as military and in possession of a part of the na-
tional territory.
(3) (a) That the dejure Government has recognized the insurgents as belligerents; or
(b) that it has claimed for itself the rights of a belligerent; or
45
Defining Non- International Armed Conflict: A Historically Difficult Task
(c) that it has accorded the insurgents recognition as belligerents for the pur-
poses only of the present Convention; or
ul) that the dispute has been admitted to the agenda of the Security Council or
the General Assembly of the United Nations as being a threat to international
peace, a breach of the peace, or an act of aggression.
(4) (a) That the insurgents have an organization purporting to have the characteris-
tics of a State.
(b) That the insurgent civil authority exercises de facto authority over the popu-
lation within a determinate portion of the national territory.
(c) That the armed forces act under the direction of an organized authority and
are prepared to observe the ordinary laws of war.
(d) That the insurgent civil authority agrees to be bound by the provisions of the
Convention. 9
Despite these criteria, States have, nevertheless, consistently resisted recogni-
tion of the existence of an armed conflict within their borders for fear, understand-
ably, of affording some form of de facto status or legitimacy to those responsible for
fostering the violence in issue — that is, to those who are engaging in hostile acts in
an effort to displace the de jure government. This lack of certainty and lack of con-
sensus regarding the scope of Article 3's applicability has, over the years, led to at-
tempts to better define Common Article 3 conflicts as a means of more effectively
triggering the law applicable to them.
Protocols I and II to the 1949 Geneva Conventions
Each of the protocols to the 1949 Geneva Conventions attempted to bring more
clarity to activities which were — and were not — to be deemed non-international
armed conflicts. 10 The significance of Protocol I to this issue is, of course, its char-
acterization in Article 1(4) of certain essentially non-international, internal con-
flicts as "international" in character — that is, "armed conflicts in which peoples are
fighting against colonial domination [Portugal's colonies in sub-Saharan Africa]
and alien occupation [Israel's occupation of territories captured in 1967] and
against racist regimes [the then-existing regimes in Rhodesia (now Zimbabwe) and
South Africa] in the exercise of their right of self-determination."
While the United States is not a party to Protocol I and is not bound by — and
does not accept — Article 1(4) as customary international law, for the purposes of
this discussion it must be noted that the ICRC Commentary on Protocol I states
that the situations specifically set forth in Article 1(4) constitute an "exhaustive
46
David E. Graham
list" of those types of internal conflicts that may be viewed as "international" in
character. 11 Accordingly, it is apparent that the Protocol has no bearing on inter-
nal, non-international conflicts that do not fall within one of these three narrow
categories. And, as a practical matter, when has there last been seen an internal
conflict that would meet these criteria? In sum, Protocol I really does very little to
better enable the international community to define and determine the existence
ofaNIAC
Protocol II was, of course, the first attempt to regulate, by treaty, the methods
and means of the employment of the use of force in internal armed conflicts. Its
purpose was to confirm, clarify and expand upon the minimal protections con-
tained in Common Article 3. The inherent difficulty with Protocol II, given our
stated purpose of discerning how to better define and determine the existence of a
NIAC, is the fact that this Protocol establishes a much higher threshold of applica-
tion than does Common Article 3. While Common Article 3 is said to apply to all
conflicts "not of an international character," Article 1(1) of Protocol II states that it
applies only to armed conflicts
which take place in the territory of a High Contracting Party between its armed forces
and dissident armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to carry
out sustained and concerted military operations and to implement this Protocol.
This decision by the drafters of Protocol II to define non-international armed
conflict, thus triggering the application of the Protocol's provisions on the basis of
objective criteria, has, in fact, had the result of substantially narrowing the number
of NIACs to which the Protocol might apply. The criteria set forth obviously re-
strict the Protocol's applicability to those conflicts of a high degree of intensity —
essentially classic civil wars. The Protocol has seldom been deemed applicable to
the great number of internal armed conflicts that have occurred since its inception,
as insurgent groups have rarely, if ever, been able to meet the stringent require-
ments of Article 1(1).
Moreover, while Article 1(2) goes on to state that the Protocol will not ap-
ply to "situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence, and other acts of a similar nature, as not being
armed conflicts," many cases of internal violence that do not meet the criteria of
Article 1(1) are, nevertheless, far more intense in nature than are riots and spo-
radic violence. As a result, these types of scenarios might legitimately be viewed as
non-international armed conflicts to which Common Article 3 should apply. The
bottom line is that the criteria contained in Article 1(1) do not greatly assist, as
47
Defining Non-International Armed Conflict: A Historically Difficult Task
was their intent, in determining the existence of a NIAC. Indeed, it can be argued
that the high bar of application established by this provision has served as a fur-
ther excuse for governments to deny the existence of non-international armed
conflicts within their borders.
In summary, then, as a result of Protocols I and II, the Geneva Conventions now
recognize and regulate three distinct categories of non-international armed con-
flict: ( 1 ) the very specifically identified and limited internal "wars of national liber-
ation," as defined in Article 1(4) of Protocol I, to which all of the provisions of
Protocol I apply; (2) classic "civil wars" as defined in Article 1(1) of Protocol II; and
(3) the ambiguously defined Common Article 3 "conflicts not of an international
character." Thus, despite the stated intentions of the drafters of the Protocols, it
might understandably be argued that we have returned to where we started — an
inability to systematically identify, with very few exceptions, when violent activities
occurring within States may legitimately be characterized as non-international
armed conflicts. If this is the case, where do we next turn?
The 1995 Tadic : Jurisdiction Decision
In October of 1995, the International Criminal Tribunal for the former Yugoslavia
(ICTY) issued what has become known as the Tadic jurisdiction decision, 12 a deci-
sion that many have since contended has considerably influenced the development
of the law of armed conflict. This assertion is centered on the argument that the
ICTY's statements on when, and in what manner, the basic principles of this body
of law should be applied serve as authoritative determinations on such matters. In-
deed, some have embraced the Tribunal's pronouncements as an almost instant
form of customary law of armed conflict. And, while I am not among those who
give such weight to this decision, given our stated purpose, it is useful to examine
the definition of "armed conflict" set forth by the ICTY: "An armed conflict exists
whenever there is a resort to armed force between States or protracted armed vio-
lence between governmental authorities and organized armed groups or between
such groups within a State." 13
The Tribunal thus defined non-international armed conflict as "protracted"
armed violence that occurs between governmental authorities and organized
armed groups or, significantly, between such armed groups themselves within a
State. Important, as well, is the fact that the use of the term "protracted" in the Tri-
bunal's definition of non-international armed conflict can be viewed as meaning
that hostilities need not be continuous.
48
David E. Graham
In turn, in interpreting this definition of non-international armed conflict ar-
ticulated by the Tadic Appeals Chamber, the Tadic Trial Chamber opined the
following:
The test applied by the Appeals Chamber to the existence of an armed conflict for the
purposes of the rules contained in Common Article 3 focuses on two aspects of a con-
flict; the intensity of the conflict and the organization of the parties to the conflict. In an
armed conflict of an internal or mixed character, these closely related criteria are used
solely for the purpose, as a minimum, of distinguishing an armed conflict from ban-
ditry, unorganized and short-lived insurrections, or terrorist activities, which are not
subject to international humanitarian law. 14
These two aspects of internal armed conflict set forth by the Tadic Trial Cham-
ber — the "intensity" of the conflict and the degree of "organization of the parties"
involved in the conflict — it might be argued, can now serve as a basis for the rec-
ognition of "de facto" non-international armed conflicts, and thus for the appli-
cation of Common Article 3 to such conflicts. Support for this view can be found
in the fact that, in determining the existence of non-international armed conflict
within Rwanda, the International Criminal Tribunal for Rwanda employed pre-
cisely this approach, noting that in making such a determination, "it is necessary
to evaluate both the 'intensity' and 'organization of the parties' to the conflict." 15
Further endorsement of the reasoning contained in the ICTY's Tadic decision
is reflected, as well, in the adaptation of the u Tadic formula" in the Rome Statute
of the International Criminal Court. The second sentence of Article 8(2)(f) of the
Statute states that the Statute applies "to armed conflicts that take place in the
territory of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups." 16 This adap-
tation originated in a proposal submitted by Sierra Leone and was accepted in
an apparent effort to provide a positive definition of non-international armed
conflict. 17
Given these developments, even absent a detailed examination of the exact
meaning of the terms "intensity" of a conflict and "organization of the parties" to a
conflict, it is apparent that a legitimate argument can now be made that the Tadic
formula may well have had the effect of lowering the threshold required for the rec-
ognition of a non-international armed conflict. Very importantly, however, it re-
mains to be seen whether future State practice will, in fact, sanction the validity of
this approach.
49
Defining Non-International Armed Conflict: A Historically Difficult Task
"Global" Non-International Armed Conflicts?
At this juncture, it is essential to recognize that all of the preceding discussion re-
garding the nature and scope of non-international armed conflict has centered on
violence — that is, hostilities — occurring within the boundaries of a State, thus,
internal armed conflict. There is good reason for this. This is the geographical con-
text in which NIACs have historically — and legally — been defined. Common Arti-
cle 3 conflicts "not of an international character" have, since the adoption of the
1 949 Geneva Conventions, consistently and uniformly been viewed in this man-
ner. And no State, to include the United States, has ever challenged this
interpretation.
So, given this reality, what has recently driven an attempted move away from
this historical interpretation of Common Article 3 and non-international armed
conflict? The answer resides in the events of 9/1 1 and the resultant attempts by the
Bush administration to exercise the essentially unfettered "wartime" powers of a
unitary executive. This resulted in an unprecedented misapplication of interna-
tional law, in general, and the law of armed conflict, in particular. 18 And, when
challenged by this overreach of executive authority, a compliant Congress failed to
step forward to exercise its responsibility to rein in an administration running
roughshod over the law, particularly that applicable to detainees held in the cus-
tody of the U.S. government.
Recognizing this congressional failure, the U.S. Supreme Court had little
choice but to act. And, while it can be argued that its intentions were good, the
Court's legal reasoning was both faulty and self-serving. In June 2006, the Court
issued its Hamdan decision. 19 Relevant to the topic at hand, the Court opined that
Common Article 3 was, in fact, applicable to a "conflict not of an international
character" then being waged between the United States and the terrorist organiza-
tion Al Qaeda. Its reasoning: the phrase "conflict not of an international charac-
ter" appears in Common Article 3 simply to evidence a contradistinction to a
conflict between nations. "In context," the Court opined, this phrase must bear its
literal meaning. And, while acknowledging that "the official commentaries
[Pictet's Commentary] accompanying Common Article 3 indicate that an
important purpose of the provision was to furnish minimal protections to rebels
involved in one kind of 'conflict not of an international character,' i.e., a civil war,"
the Court then proceeded to note that "the commentaries also make clear 'that the
scope of the Article must be as wide as possible.'" 20 In referencing this statement,
however, the Court intentionally chose to ignore the context in which this com-
ment was made. The Commentary text, following the listing of criteria set forth to
50
David E. Graham
assist in determining the existence of what clearly can only be viewed as "internal"
non-international armed conflicts, reads as follows:
Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a
country, but does not fulfil any of the above conditions . . . ? We do not subscribe to this
view. We think, on the contrary, that the Article should be applied as widely as possible.
There can be no reason against this. For, contrary to what may have been thought, the
Article in its reduced form does not in any way limit the right of a State to put down
rebellion. Nor does it increase in the slightest the authority of the rebel party. 21
An objective assessment of Pictet's commentary to Article 3 clearly evidences
the fact that the Court either failed to appreciate or deliberately chose to ignore the
historical and consistent interpretation of Common Article 3's application to —
exclusively — internal armed conflicts occurring within the territorial boundaries
of one of the high contracting parties to the 1949 Geneva Conventions. In my
view, it was the latter. Unwilling to challenge the President's ill-conceived deter-
mination that the United States was engaged in a "global war against terrorism/' 22
the Court, in essence, said: "If you seek to invoke the law of armed conflict to in-
definitely incarcerate individuals seized in this 'war,' you must, at the very least,
afford such individuals the minimal safeguards provided by this body of law —
those of Common Article 3." And, rather than framing such safeguards as custom-
ary law of armed conflict provisions (given both the administration's and the
Court's disdain for the legitimacy of customary international law), the Court was
determined to posture Article 3's requirements as a treaty obligation. Thus, the
Court's clearly tortured interpretation of the phrase "conflict not of an interna-
tional character."
And so was born the misguided notion of the potential existence of non-
international armed conflicts capable of spanning State boundaries. Indeed, the
Hamdan decision has since been cited as definitive proof of this fact, given the
Court's recognition of the existence of a "global" NIAC to which Common Article
3 was said to apply. 23 The reality is, of course, that the U.S. Supreme Court does
not — and cannot — speak for the international community when it comes to the in-
terpretation of multilateral international agreements. Nevertheless, the Court's at-
tempt to significantly expand the definition and scope of a non-international
armed conflict has unquestionably triggered the recent advocacy of the existence of
a new form of conflict now said to be in play — that is, "transnational armed conflict."
This term has been used in different ways. One commentator makes use of it to
describe a hybrid form of conflict, neither international nor non-international in
character, but hostilities that fall somewhere in between and which represent the
extraterritorial application of military combat power by the regular armed forces of
51
Defining Non-International Armed Conflict: A Historically Difficult Task
a Mate against a transnational non-State entity. 24 Others have identified such con-
flicts as those that occur between a State and a non-State group (or between non-
State groups) on the territory of more than one State, and would characterize these
as armed conflicts of a non-international character." In their view, the geograph-
ical element should not serve as the determinative factor in assessing whether a
conflict is international in nature. "Internal conflicts are distinguished from inter-
national armed conflicts by the parties involved rather than by the territorial scope
of the conflict." 23 The most cited examples of what these commentators would ad-
judge to be "transnational armed conflicts" would appear to be the Israel Defense
Forces' incursions into southern Lebanon in 2006 and into Gaza in 2009. While I
remain unconvinced of either the existence or the need for creation of this new
form of armed conflict, the discussion of such is certain to continue.
So where does this leave us in terms of being able to reasonably identify violence
that has risen to the level of a non-international armed conflict? In brief, see Com-
mon Article 3, Article 1(4) of Protocol I (which transforms certain NIACs into in-
ternational armed conflicts), Article 1(1) of Protocol II, and, at least potentially,
depending on future State practice, the determinative criteria articulated in the
Tadic decision.
Identifying Non-International Armed Conflicts: U.S. State Practice
Now to my second assigned mission at the conference: U.S. State practice with re-
spect to the manner in which it determines the existence — or non-existence — of a
non-international armed conflict. Here, I am tempted to simply bring this article
to a close with the concluding remark "there is none." And while such a premature
conclusion is perhaps untenable, I, nevertheless, believe the statement to be an ac-
curate one.
Given the Supreme Court's decision in Hamdan, a product of the Bush admin-
istration's bastardization of the law of armed conflict, the United States may now
feel compelled to at least give lip service to the possibility of affording a slightly
broader view of the phrase "conflicts not of an international character." However, I
would see the government, having given a nod in this direction, then hastening to
note that as the international community has been unable to achieve consensus on
an agreed definition of non-international armed conflict, and given that a transi-
tion from international to non-international armed conflict is often quite subtle in
nature, 26 a decision as to whether any form of violence has — or has not — evolved
into a non-international armed conflict is, ultimately, the responsibility of the gov-
ernment faced with the armed threat in issue.
52
David E. Graham
Having taken this position, the United States may well take the view that, in
those cases in which it engages in foreign internal defense operations (the provi-
sion of U.S. advice and/or assistance to a foreign government faced with an internal
threat from a non-State actor), while the decision as to whether this threat does —
or does not — constitute a non-international armed conflict might be made jointly
by the United States and the host government, the United States would ordinarily
defer to the latter's judgment on this matter. 27
The bottom line is that past practice indicates that the U.S. approach toward
the issue of determining whether certain combatant activity is or is not a non-
international armed conflict is completely self-serving, as it is for every State.
From a purely bureaucratic standpoint, a determination as to whether U.S. mili-
tary operations taken against an armed non-State actor should be characterized as
a non-international armed conflict might be cited as a matter for U.S. interagency
coordination. In reality, however, U.S. practice again reflects the fact that in most,
if not all, cases, no "official" U.S. government determination is ever made. This
was certainly the case in both Iraq and Afghanistan as these conflicts transitioned
from international to non-international conflict. Instead, the United States has
historically sought to protect its personnel involved in military operations that
fall short of international armed conflict — or that might arguably be character-
ized as non-international armed conflict — and has sought compliance with the
basic provisions of the law of armed conflict by its adversaries in such situations
by formally stating that, as a matter of policy rather than law: "Members of the
DoD Components comply with the Law of War during all armed conflicts, how-
ever such conflicts are characterized, and in all other military operations." 28
I see no reason to expect a change in this U.S. approach toward dealing with the
matter of MAC characterization in the future. The U.S. government will continue
to make no "official" determinations regarding whether certain hostilities do or do
not constitute non-international armed conflicts. Again, while completely self-
serving, it is an approach grounded in practicality and one that has produced a rea-
sonably successful track record thus far.
Notes
1. Hersch Lauterpacht, The Problem of the Revision of the Law of War, 29 BRITISH
Yearbook of International Law 360, 381-82 (1952).
2. For a discussion of the concept of "transnational" armed conflicts, see Andreas Paulus &
Mindia Vashakmadze, Asymmetric War and the Notion of Armed Conflict — A Tentative Concep-
tualization, 91 International Review of the Red Cross 95, 1 10-12 (2009).
3. Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the
53
Defining Non- International Armed Conflict: A Historically Difficult Task
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
4. Commentary to Geneva Convention i for the amelioration of the
Condi iion of the wounded and Sick in armed Forces in the Field (Jean S. Pictet ed.,
1952) [hereinafter PICTET COMMENTARY].
5. hi. at 32.
6. For a discussion of the "internationalization" of a non-international armed conflict, see
Michael N. schmitt, Charles h.b. Garraway & yoram Dinstein, The Manual on the
Law en Non-International Armed Conflict with Commentary 2 (2006); Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ^ 79 & 82 (July 8); Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ^| 115
(June 27).
7. Jean S. Pictet, Development and Principles of InternationaI Humanitarian
Law 47 (1985).
8. For a discussion of State denial of the existence of a non-international armed conflict
within its borders, see Anthony Cullen, Key Developments Affecting the Scope of Internal Armed
Conflict in International Humanitarian Law, 183 MILITARY LAW REVIEW 66, 83-88 (2005).
9. Pictet Commentary, supra note 4, at 49-50.
10. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3; Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Vic-
tims of Non-International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 609.
11. Commentary on the additional Protocols of 8 June 1977 to the Geneva
CONVENTIONS OF 12 AUGUST 1949 ffl 108-13 (Yves Sandoz, Christophe Swinarski & Bruno
Zimmermann eds., 1987).
12. Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
13. fd.,170.
14. Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment, ^ 562 (Int'l Crim. Trib. for the For-
mer Yugoslavia May 7, 1997).
15. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 1 620 (Sept. 2, 1998).
16. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.
1 7. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an Inter-
national Criminal Court, June 15— July 17, 1998, 35th Meeting of the Committee Whole, ^ 8,
U.N. Doc. A7CONF.183/C.1/SR.35, available at http://untreaty.un.org/coddiplomaticconferences/
ice- 1998/docs/english/vol2/a_conf_ 183_cl_sr35.pdf.
18. For a detailed discussion of the Bush administration's misapplication of the law of armed
conflict to the issue of detainees held by the U.S. government post-9/1 1, see David E. Graham, The
Dual U.S. Standard for the Treatment and Interrogation of Detainees: Unlawful and Unworkable,
48 Washburn Law Journal 325 (2009).
19. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
20. Id. at 630-31.
2 1 . PICTET COMMENTARY, supra note 4, at 50 (emphasis added).
22. See, e.g., THE WHITE HOUSE, NATIONAL STRATEGY FOR COMBATING TERRORISM 18
(2003), available at http://www.comw.org/qdr/fulltext/0302nsct.pdf.
23. Paulus & Vashakmadze, supra note 2, at 99.
54
David E. Graham
24. Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need to
Recognize a Hybrid Category of Armed Conflict, 40 VANDERBILT JOURNAL OF TRANSNATIONAL
LAW 295 (2007).
25. Paulus & Vashakmadze, supra note 2, at 112.
26. Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom are classic
examples of the subtle nature of such transitions.
27. It can be argued, however, that, in the matter of making a decision as to whether the on-
going conflict in Afghanistan has, over time, transitioned into a non-international armed con-
flict, the United States has neither deferred to nor acted jointly with the Afghan government in
making such a decision.
28. Department of Defense, DoD Directive 231 1.0 IE, DoD Law of War Program ^f 4.1
(2006), available at http://www.dtic.mil/whs/directives/corres/pdf/231 101e.pdf.
55
IV
Self-defense Targeting: Blurring the Line
between the Jus ad Bellum and the
Jus in Bello
Geoffrey S. Corn*
I. Introduction
Conflict classification has been and will continue to be one of the most com-
plex issues arising from the intersection of national security policy and in-
ternational law. From the inception of what the United States dubbed the "Global
War on Terror," experts have been debating the meaning of the term "armed con-
flict," both international and non-international. The proliferation of remotely pi-
loted warfare has only exacerbated the uncertainty associated with the meaning of
these terms. In response, the concept of self-defense targeting emerged as an osten-
sible alternative to determining if and when a national use of armed force qualified
as an armed conflict. In essence, this theory averts the need to engage in jus in bello 1
classification of counterterror military operations by relying on the overarching jws
ad bellum 2 legal justification for these operations. Self-defense targeting, or what
Professor Kenneth Anderson has called "naked self-defense," 3 is offered as the U.S.
legal framework for employing combat power to destroy or disrupt the capabilities
* Professor of Law, South Texas College of Law, Houston, Texas. Previously Lieutenant Colonel,
U.S. Army, and Special Assistant to the U.S. Army Judge Advocate General for Law of War Mat-
ters. I would like to thank Nicholas Geohegan and Joel Glover for their excellent contributions in
support of completing this article.
Blurring the Line between the Jus ad Bellum and the Jus in BeUo
of transnational terrorist operatives. 4 This essay will question the validity of substi-
tuting jus ad helium principles for those of the jus in hello, and why this substitution
is a false solution to this extremely complex conflict classification dilemma.
The attack on Osama Bin Laden's (OBL) compound in Pakistan 5 has exposed in
stark relief the importance of defining the legal framework applicable to the use of
military force as a counterterrorism tool. The initial focus of the public debate gen-
erated by the attack was the legitimacy of the U.S. invocation of the inherent right
of self-defense to launch a non-consensual operation within the sovereign territory
of Pakistan. 6 However, that focus soon shifted to another critical legal question:
even assuming the exercise of national self-defense was legitimate, what law regu-
lated the tactical execution of the operation? 7 By virtue of his role as the leader of al
Qaeda, was OBL a lawful military objective within the meaning of the law of armed
conflict (LOAC), 8 and thereby subject to attack with deadly force as a measure of
first resort? Or was he merely an international criminal, subject to a much more
limited law enforcement use of force authority? The duality of the jus belli issues
implicated by the attack generated a two-pronged legal critique: First, did the mis-
sion violate the international legal prohibition against use of force (Jus ad bellum) 7 .
Second, did the mission trigger the law of armed conflict, or was the amount of
force employed during the mission resulting in OBL's death excessive to that which
was necessary to apprehend him? The self-defense targeting theory failed to suffi-
ciently address this duality.
The first prong of this dualistic legal debate touches on an issue that appears
well-settled in U.S. practice: the use of military force to attack individuals who are
determined to be al Qaeda or Taliban belligerent operatives. The second prong —
how such attacks are legally regulated at the tactical execution level — remains a
subject of uncertainty. Both Presidents Bush and Obama (with the support of
Congress) consistently invoked the inherent right of national self-defense pursu-
ant to Article 51 of the Charter of the United Nations as the legal basis for attack-
ing al Qaeda operatives. 9 However, the Obama administration seems to have
superimposed an odd veneer on this authority: the concept of self-defense target-
ing. 10 Invoking the inherent right of self-defense, this theory suggests that both the
resort to armed force and the execution of specific operations are regulated by the
jus ad bellum. In essence, because attacking terrorist targets falls within the scope
of international self-defense legal authority, jus ad bellum self-defense principles
regulate the execution of combat operations used to achieve this self-defense ob-
jective, obviating the need to assess whether and what jus in bello principles apply
to these operations. Thus, so long as the targets fall within the ad bellum principles
of necessity and proportionality, attacking them is legally permissible.
58
Geoffrey S. Corn
II. Background
There is nothing unusual about the assertion that the principles of necessity and
proportionality regulate combat operations directed against transnational terrorist
operatives. 11 What is unusual is the assertion that jws ad helium variants of these
principles regulate operational execution. 12 Necessity and proportionality have
always been core principles of both branches of the jws belli — principles that apply
to both the authority to employ military force and the regulation of actual employ-
ment. However, in the jus ad helium context, they have never before been viewed as
principles to regulate operational and tactical execution. 13 Instead, in that context
they frame the legality of national or multinational resort to military force in self-
defense. Once the decision is made to employ force pursuant to this authority, the
jus in hello variant of these principles (necessity of the mission and proportionality
of collateral damage) operate to regulate the application of combat power during
mission execution (in other words, they provide the foundation for the regulation
of the application of combat power in the context of the self-defense-justified
mission).
This self-defense targeting paradigm — Professor Kenneth Anderson's "naked
self-defense" 14 — is certainly responsive to concerns over the legality of extending
counterterror combat operations beyond the geographic limits of Afghanistan
(and to an increasingly lesser degree Iraq). However, it does not and cannot be-
come a substitute for defining the rules that regulate the actual execution of such
missions. This ad helium targeting theory may in some ways be responsive to the
uncertainty related to the legal characterization of the struggle against transna-
tional terrorism, or perhaps more precisely the question of whether an armed con-
flict can exist within the meaning of international law when States employ armed
force to find, fix and destroy terrorist operations in diverse geographic locations. 15
A subcomponent of this question regarding the existence of an armed conflict is,
even assuming the answer is yes, does such a conflict follow the enemy wherever on
the globe he may be and does it provide for a "springing" of the LOAC authority for
brief periods of time wherever he is located?
Since the United States initiated its military response to the terrorist attacks of
September 11, 2001, the uncertainty related to the legal nature of this response has
been a central theme in policy and academic discourse. Although the answers to
these questions seem increasingly settled in U.S. practice (at least in the practical if
not legal sense), questions over the legality of killing OBL — or the availability of
viable alternatives — have again highlighted the significance of this uncertainty.
While the United States seems to have abandoned the assertion that it is in a "war"
against terror that spans the entire globe, its continued attack of what can only be
59
Blurring the Line between the Jus ad Bellum and the Jus in Bello
understood as targets of opportunity in places like Yemen, Somalia and Pakistan
have kept this uncertainty at the forefront of contemporary debate on counter-
terror operations. 16
Various interpretations of what triggers the jus in bello emerged following the
I'.S. military response to the terror attacks of September 1 1. In general terms, these
theories ranged across a spectrum from a strict adherence to the theretofore widely
accepted international/internal armed conflict paradigm, to the other extreme,
proffered by me and others, that military operations conducted against interna-
tional terrorist organizations like al Qaeda should be characterized as transnational
armed conflicts: non-international armed conflicts of international scope. 17
Within that range were included concepts such as militarized law enforcement and
extraterritorial law enforcement (military operations within the framework of hu-
man rights principles). All of these approaches shared a common theme: they
sought to define the rules of tactical execution applicable to this military response
within a framework of established legal norms. 18
This essay will argue that the concept of self-defense targeting does not and can-
not provide a substitute for resolving the debate about in bello applicability to
transnational counterterror military operations. The reasons for this are multifac-
eted. First, the jus ad bellum has never been understood as a source of operational
or tactical regulation nor a substitute for the law providing that regulation. 19
Indeed, one of the central tenets of the jus belli has always been the invalidity of reli-
ance on the jus ad bellum to define jus in bello obligations. Instead, the de facto na-
ture of tactical execution is the principal factor for assessing applicability of the jus
in bello. Second, because the jus ad bellum has never been conceived as a tactical
regulatory framework, using it as a substitute for the jws in bello injects unaccept-
able confusion into the planning and execution of combat operations. Finally,
while the principles of necessity and proportionality are central to both branches of
the jus belli, the meaning of these principles is not identical in each branch but, in
fact, disparate. As a result, the scope of lawful authority to employ force during
mission execution will be subtly but unquestionably degraded if ad bellum princi-
ples are utilized as a substitute for in bello regulation.
A. Transnational Armed Conflict: Genesis and Controversy
Transnational armed conflict as a legal term of art was nonexistent prior to Sep-
tember 1 1 , 200 1 . Other writings provide extensive explanation of the term's origins
and the concept it proposed. 20 In essence, it was a concept intended to bridge the
chasm between the two traditionally acknowledged — and ostensibly only — situa-
tions triggering the jus in bello: international or inter-State armed conflicts and
non-international or internal armed conflicts. 21 Adopted in the 1949 revisions to
60
Geoffrey 5. Corn
the Geneva Conventions, the concept of armed conflict, and these two categories of
armed conflict, manifested an effort to ensure a genuine de facto law-triggering
standard. 22 While this did not eliminate all uncertainty as to when the law applies,
preventing humanitarian law avoidance through reliance on technical legal con-
cepts such as war was unquestionably the primary motive behind the adoption of
the armed conflict law trigger.
This was a profound development in conflict regulation. For the first time in
history, a treaty-based legal test dictated applicability of LOAC regulation. 23 Al-
though originally linked only to application of the Geneva Conventions, these trig-
gers rapidly became the standard for applicability of the entire corpus of the
LOAC. 24 An entire generation of military and international lawyers learned that
armed conflict triggers LOAC application. 25 However, they also learned that there
were only two types of armed conflict: international and internal. 26
This dichotomy was under-inclusive from its inception. The international/
internal armed conflict dichotomy was clearly responsive to the law avoidance
that occurred during World War II and the law inapplicability during the Spanish
Civil War. 27 However, it failed to account for the possibility of extraterritorial
armed conflicts between States and non-State belligerents. 28 Although not a com-
mon situation in the history of modern warfare, hostilities in such a context were
not unknown. 29 Nor did the armed-conflict-law trigger account for the emergence
of other external military operations involving minimal hostilities, such as United
Nations peacekeeping missions. 30 Understanding the necessity of providing a reg-
ulatory framework for such operations, commanders and legal advisors thrust
into these zones of uncertainty resorted to policy-based application of jus in bello
principles, a methodology that proved generally effective in the decade preceding
9/1 1. 31 However, this approach to filling the regulatory void created by the inter-
national/internal dichotomy also averted attention from the underlying issue of
regulatory under-inclusiveness. 32
This under-inclusiveness was fully exposed when the United States initiated its
military response to al Qaeda following the terror attacks of September ll. 33 As the
United States began to preventively detain captives in that struggle, the implicit in-
vocation of LOAC authority became clear. 34 Use of the designation "unlawful
combatant" confirmed this invocation — these terrorist operatives were detained
not as criminals awaiting adjudication, but as enemy operatives to prevent their re-
turn to hostilities. 35 However, pursuant to the advice provided by his Attorney
General, President Bush concluded that LOAC protections were inapplicable to
these detainees. 36 The basis for this conclusion was clear: the armed conflict with al
Qaeda did not fit within the international/internal armed conflict law-triggering
equation. 37 Because al Qaeda was not a State, the conflict could not qualify as
61
Blurring the Line between the Jus ad Bellum and the Jus in Bello
international; because al Qaeda operated outside the territory of the United States,
the conflict could not qualify as internal. 38
This determination was problematic on numerous levels, but for military
lawyers trained to ensure compliance with LOAC principles during all military op-
erations no matter how they might be legally classified, 39 it was particularly trou-
bling. As I have written previously, the concept of transnational armed conflict
evolved to respond to this newly exploited gap in legal protections for individuals
subjected to LOAC-based authority. 40 The objectives of the concept were simple:
adopt a characterization for the non-international armed conflict with al Qaeda
consistent with the non-State but nonetheless international character of the orga-
nization; require application of fundamental LOAC principles; and deny al Qaeda
any credibility windfall from suggesting the conflict was international within the
meaning of the law. In short, it was simply a term to denote a non-international
armed conflict (within the meaning of Common Article 3 of the four 1949 Geneva
Conventions) of international scope, what others have called an "international-
ized non-international armed conflict." 41
Reaction to the transnational armed conflict concept has ranged the spectrum
from rejection 42 to endorsement; 43 however, it is important to note that the un-
derlying objective is also reflected in other conceptions of the legal framework for
the military component of counterterror operations. As noted, these include "in-
ternationalized" non-international armed conflict and militarized extraterritorial
law enforcement. 44 For the United States, this debate was essentially resolved by
the Supreme Court's 2006 decision in Hamdan v. Rumsfeld. 45 A majority of the
Court concluded the term "non-international armed conflict" in Common Arti-
cle 3 is not restricted to internal armed conflicts, but covers any armed conflict
that does not qualify as international within the meaning of Common Article 2. 46
This "contradistinction" interpretation effectively achieved the transnational
armed conflict objective: a majority of the Court closed the gap identified (some
might say exploited) by the Department of Justice analysis and relied on by Presi-
dent Bush. 47 By concluding that any armed conflict that fails to qualify as "inter-
national" within the meaning of the Geneva Conventions is non-international
(irrespective of geographic scope) and therefore triggers the baseline humanitar-
ian protections of Common Article 3, the Court created a simple equation: if the
government treats the struggle against al Qaeda as an armed conflict, it must be ei-
ther international or non-international within the meaning of the Geneva
Conventions. 48 Thus, it closed the gap in humanitarian law applicability and en-
sured that future invocations of armed conflict authority must trigger minimum
humanitarian obligations. 49
62
Geoffrey 5. Corn
The Hamdan opinion has not, however, eliminated the uncertainty and contro-
versy over the legal characterization of military operations directed against al
Qaeda. 50 Experts continue to struggle with this question, and new theories continue
to emerge. 51 It remains indisputable, however, that characterizing the contention
between al Qaeda and the United States as an armed conflict defies indicators tra-
ditionally applied to identify the existence of non-international armed conflicts. 52
Those most notably lacking include a sustained nature of combat operations di-
rected against al Qaeda targets outside the Afghanistan zone of combat 53 (even
loosely defined), and the lack of continuous and concerted hostilities by al Qaeda
against the United States. 54 This lack of "intensity" and "duration" was in fact cen-
tral to the conclusion by a working group of the International Law Commission
that counterterror operations cannot be properly characterized as armed conflicts,
even of the non-international type. 55 Following President Obama's election, ex-
pectations were high that the new administration might abandon the armed con-
flict theory altogether and revert to the international law enforcement approach to
dealing with the transnational terrorist threat. 56 Not only were these expectations
unfounded; the new administration opened an entirely new front in the legal char-
acterization debate. 57
B. Self-defense Targeting: A Third Rail?
It did not take long for the Obama administration to demonstrate that it was not
about to abandon an armed conflict-based approach to dealing with the al Qaeda
threat. 58 To this date, the United States continues to employ combat power against
al Qaeda operatives in locations both proximate to and far removed from ongoing
hostilities in Afghanistan. 59 These operations involve the employment of deadly
force as a measure of first resort, an unavoidable indicator that the United States
continues to rely on an armed conflict-based legal framework. 60 The discomfort
with such an expansive concept of armed conflict is certainly understandable.
What is equally understandable is the pragmatic reality that the nature of these
operations makes them inconsistent with peacetime law enforcement legal princi-
ples. 61 Nonetheless, the apparent aversion to recognizing some type of "springing"
armed conflict paradigm has produced not only opposition, but also a proposal
for an alternative legal framework that avoids the need to address the conflict clas-
sification dilemma: self-defense targeting. 62
This alternative methodology is most notably attributed to Professor Kenneth
Anderson. 63 In a series of essays, Anderson began to proffer the argument that the
jus ad bellum provides sufficient — and ostensibly exclusive — legal authority for
the regulation of attacks directed against terrorist operatives. 64 This theory has
also been embraced by Professor Jordan Paust. 65 Although Paust has consistently
63
Blurring the Line between the Jus ad Bellum and the Jus in Bello
rejected characterizing the response to transnational terrorism as an armed con-
flict 00 (based primarily on a classical interpretation of Common Articles 2 and 3 of
the Geneva Conventions), 67 his position has evolved to acknowledge the legiti-
mate use of military force in self-defense against external non-State threats. 68 That
response would not qualify as an armed conflict, because it could not fit within the
traditionally understood scope of the Geneva Convention law-triggering frame-
work. Instead, the jus ad bellum right of self-defense would be the exclusive source
of legal authority related to the response.
Professor Anderson characterizes this theory as "naked self-defense." 69 Accord-
ing to Anderson, this term characterizes the legal basis for drone strikes articulated
by State Department Legal Advisor Harold Koh: exercise of jus ad bellum self-
defense does not ipso facto trigger the jus in bello. As will be explained more fully
below, in the same essay Anderson signals a significant revision of this theory — a
retreat motivated by his reflection on the inability to effectively define the geo-
graphic scope of a transnational non-international armed conflict. What is signifi-
cant here, however, is that the theory itself presents a complex question: is it
possible to employ military force pursuant to a claim of jus ad bellum national self-
defense without triggering the jus in bello 7 . And if the answer is yes, what interna-
tional legal principles regulate the application of combat power during the execu-
tion of such operations?
In this essay, I argue that jus ad bellum targeting — or naked self-defense — is a
flawed substitute for embracing the alternate (albeit controversial) conclusion that
employing combat power in self-defense against transnational non-State opera-
tives must be characterized as armed conflict. In support of this argument, the es-
say will expose what I believe is the implicit acknowledgment by proponents of
self-defense targeting that these operations do indeed trigger the LOAC. I will do
this by exploring the nature of two fundamental jus belli principles invoked by
these proponents: necessity and proportionality. 70 Contrasting the effect of these
principles within the self-defense targeting framework with their effect within a jus
in bello framework will illustrate that self-defense targeting reflects an implicit ac-
knowledgment of jus in bello applicability during operational mission execution.
///. The Traditional Distinction between the Jus ad Bellum and the Jus in Bello
At the core of the self-defense targeting theory is the assumption that the jus ad
bellum provides sufficient authority to both justify and regulate the application of
combat power. 71 This assumption ignores an axiom of jus belli development: the
compartmentalization of the jus ad bellum and the jus in bello. 72 As Colonel
G.I.A.D. Draper noted in 1971, "equal application of the Law governing the
64
Geoffrey S. Corn
conduct of armed conflicts to those illegally resorting to armed forces and those
lawfully resorting thereto is accepted as axiomatic in modern International Law." 73
This compartmentalization is the historic response to the practice of definingjws in
hello obligations by reference to thejws ad helium legality of conflict. 74 As the jus in
hello evolved to focus on the humanitarian protection of victims of war, to include
the armed forces themselves, 75 the practice of denying LOAC applicability based on
assertions of conflict illegality became indefensible. 76 Instead, the de facto nature of
hostilities would dictate jus in hello applicability, and the jus ad helium legal basis
for hostilities would be irrelevant to this determination. 77
This compartmentalization lies at the core of the Geneva Convention law-
triggering equation. 78 Adoption of the term "armed conflict" as the primary trig-
gering consideration for jus in hello applicability was a deliberate response to the
more formalistic jus in hello applicability that predated the 1949 revision of the
Geneva Conventions. 79 Prior to these revisions, in hello applicability often turned
on the existence of a state of war in the international legal sense, which in turn led
to assertions of inapplicability as the result of assertions of unlawful aggression. 80
Determined to prevent the denial of humanitarian regulation to situations neces-
sitating such regulation — any de facto armed conflict — the 1949 Conventions
sought to neutralize the impact of ad helium legality in law applicability analysis. 81
This effort rapidly became the norm of international law. 82 Armed conflict anal-
ysis simply did not include conflict legality considerations. 83 National military
manuals, international jurisprudence and expert commentary all reflect this devel-
opment. 84 This division is today a fundamental LOAC tenet — and is beyond dis-
pute. 85 In fact, for many years the United States has gone even farther, extending
application of LOAC principles beyond situations of armed conflict altogether so
as to regulate any military operation. 86 This is just another manifestation of the fact
that States, or perhaps more importantly the armed forces that do their bidding,
view the cause or purported justification for such operations as irrelevant when de-
ciding what rules apply to regulate operational and tactical execution.
This aspect of ad helium/ in hello compartmentalization is not called into ques-
tion by the self-defense targeting concept. 87 Nothing in the assertion that combat
operations directed against transnational non-State belligerent groups qualifies as
armed conflict suggests the inapplicability of LOAC regulatory norms on the basis
of the relative illegitimacy of al Qaeda's efforts to inflict harm on the United States
and other victim States (although as noted earlier, this was implicit in the original
Bush administration approach to the war on terror). 88 Instead, the self-defense tar-
geting concept reflects an odd inversion of the concern that motivated the armed
conflict law trigger. The concept does not assert the illegitimacy of the terrorist
cause to deny LOAC principles to operations directed against them. 89 Instead, it
65
Blurring the Line between the Jus ad Bellum and the Jus in Bello
relies on the legality of the U.S. cause to dispense with the need for applying LOAC
principles to regulate these operations. w This might not be explicit, but it is clear
that an exclusive focus on ad helium principles indicates that these principles sub-
sume in hello conflict regulation norms. 91
There are two fundamental flaws with this conflation. First, by contradicting the
traditional compartmentalization between the two branches of the jus belli, 91 it cre-
ates a dangerous precedent. Although there is no express resurrection of the just
war concept of LOAC applicability, by focusing exclusively on jus ad bellum legality
and principles, the concept suggests the inapplicability of jus in bello regulation as
the result of the legality of the U.S. cause. To be clear, I believe U.S. counterterror
operations are legally justified actions in self-defense. However, this should not be
even implicitly relied on to deny jus in bello applicability to operations directed
against terrorist opponents, precisely because it may be viewed as suggesting the
invalidity of the opponent's cause deprives them of the protections of that law, or
that the operations are somehow exempted from LOAC regulation. Second, even
discounting this detrimental precedential effect, the conflation of ad bellum and in
bello principles to regulate the execution of operations is extremely troubling. 93
This is because the meaning of these principles is distinct within each branch of the
jus belli?*
Furthermore, because the scope of authority derived from jus ad bellum princi-
ples purportedly invoked to regulate operational execution is more restrictive
than that derived from their jus in bello counterparts, 95 this conflation produces a
potential windfall for terrorist operatives. Thus, the ad bellumlin bello conflation
is ironically self-contradictory. In one sense, it suggests the inapplicability of jus
in bello protections to the illegitimate terrorist enemy because of the legitimacy of
the U.S. cause. 96 In another sense, the more restrictive nature of the jus ad bellum
principles it substitutes for the jus in bello variants to regulate operational execu-
tion provides the enemy with increased protection from attack. 97 Neither of these
consequences is beneficial, nor necessary. Instead, compliance with the tradi-
tional jus ad bellum/jus in bello compartmentalization methodology averts these
consequences and offers a more rational approach to counterterrorism conflict
regulation. 98
IV. Necessity and Proportionality: The Risk of Authority Dilution
The most problematic aspect of the self-defense targeting concept is that it pro-
duces a not so subtle substitution of jus ad bellum necessity and proportionality for
the jus in bello variants of these principles. 99 While these principles are fundamen-
tal in both branches of the jus belli, 100 they are not identical in effect. The ad bellum
66
Geoffrey S. Corn
variants are intended to limit State resort to force to a measure of last resort; 101 the
in hello variants are intended to strike an appropriate balance between the author-
ity to efficiently bring about the submission of an enemy and the humanitarian in-
terest of limiting the inevitable suffering associated with armed conflict. 102
It is a foundational principle of international law that the jws ad helium restricts
resort to force by States to situations of absolute necessity — and necessity justifies
only proportional force to return the status quo ante. 103 In this sense, national
self-defense is strikingly analogous to individual self-defense as a criminal law
justification. 104 In both contexts, necessity requires a determination of an immi-
nent threat of unlawful attack, a situation affording no alternative other than self-
help measures. 105 Furthermore, even when the justification of self-help is trig-
gered by an imminent threat, both bodies of law strictly limit the amount of force
that may be employed to respond to the threat. 106 States, like individuals, may use
only that amount of force absolutely necessary to meet the threat and restore the
status quo ante of security. 107 Using more force than is necessary to subdue the
threat is considered excessive, and therefore outside the realm of the legally justi-
fied response. 108
There is no question that these variants of necessity and proportionality are crit-
ical to the stability of international relations. 109 The UN Charter reflects an obvious
judgment that States are obligated to endeavor to resolve all disputes peacefully,
and that resort to force must be conceived as an exceptional measure. 1 10 A very lim-
ited conception of necessity requiring an actual and imminent threat of unlawful
aggression serves this purpose by prioritizing alternate dispute resolution modali-
ties over uses of force — the core purpose of the Charter. 111 Even after a justifiable
resort to force, the requirement to provide notice to the Security Council 1 12 reflects
this purpose by enhancing the probability of Security Council action to restore in-
ternational peace and security and thereby nullify the necessity for continued use
of force by the State. 113 The jus ad helium proportionality rule also serves this pur-
pose by reducing the risk of uncontrollable escalation. 114 By limiting the justified
response to only that amount of force absolutely necessary to reduce the threat,
proportionality operates to mitigate the risk of a justified self-defense response
morphing into an unjustified use of military force to achieve objectives unrelated
to self-defense. 115 As a result, conflagration is limited, thereby enhancing the effi-
cacy of alternate dispute resolution modalities.
These principles make perfect sense when assessing the justification for a na-
tional resort to military force outside the umbrella of a Security Council authoriza-
tion. However, as operational execution parameters, they impose a peacetime self-
defense model onto wartime employment of combat power. This is because the jus
in hello variants of necessity and proportionality have never been understood to
67
Blurring the Line between the Jus ad Bellum and the Jus in Bello
function analogously with their peacetime variants. 11 * 1 Instead, these principles
have unique meaning in the context of armed conflict. 117 As a result, they are sim-
ply not interchangeable with the ad bellum variants. As a result, the self-defense tar-
geting concept ostensibly regulates the execution of combat operations with norms
inconsistent with those historically and logically suited for that purpose.
Jus in bello necessity means something fundamentally different than self-defense
necessity. 1 18 In the context of armed conflict, necessity justifies a much broader ex-
ercise of authority — the authority to employ all measures not otherwise prohibited
by international law to bring about the prompt submission of the enemy. x 19 Unlike
self-defense necessity, there is no "measure of last resort" aspect to jus in bello ne-
cessity. 120 Accordingly, armed conflict triggers authority to employ force in a
manner that would rarely (if ever) be tolerated in peacetime, even when acting in
self-defense. 121
The most obvious (and relevant for purposes of this essay) illustration of the dif-
ference between ad bellum and in bello necessity is the authority to employ deadly
force against an opponent. Like peacetime self-defense, jus ad bellum self-defense
justifies a State's use of deadly military force only as a measure of last resort. 122 In
contrast, jus in bello necessity authorizes the use of deadly combat power against an
enemy as a measure of first resort. This necessity justification is implemented
through the rule of military objective, which establishes who and what qualify as a
lawful object of attack. 123 However, once that status is determined, it is the princi-
ple of military necessity 124 that justifies employment of deadly combat power
against such "targets" as a measure of first resort. 125
It is clear that this authority in no way requires manifestation of actual threat to
the attacking force. 126 Instead, the status of military objective alone results in a pre-
sumption of threat that justifies the use of deadly force. 127 This presumption itself
indicates the unique function of in bello necessity. This central premise of the jws in
bello was reflected as early as Rousseau's 1762 Contract social, in which he noted
that "[w]ar is not a relation between man and man, but a relation between State
and State in which individuals are enemies only incidentally, not as men, or citi-
zens, but as soldiers." 128
Because armed conflict involves a contest between armed belligerent groups,
and not merely individual actors, the use of force authority triggered by military
necessity is focused on collective rather than individual effect. 129 In other words,
unlike a peacetime exercise of necessity (which focuses on neutralizing an individ-
ual threat), wartime 130 necessity focuses on bringing about the submission of the
enemy in the corporate and not individual sense. 131 This collective vice individual
focus of justifiable violence applies at every level of military operations. At the
strategic level, nations seek to break the will of an opponent by demonstrating to
68
Geoffrey S. Corn
enemy leadership the futility of resistance; at the operational level, commanders
seek to impose their will on forces arrayed against them by the synchronized em-
ployment of all combat capabilities. 132 The ideal outcome of such employment is
the establishment of full-spectrum dominance, allowing the friendly commander
to impose his will on the enemy at the time and place of his choosing. 133 This rou-
tinely necessitates use of overwhelming combat power at the decisive point in the
battle — use that is often far more robust than may be required to overcome resis-
tance at that specific point. 134 At the tactical level, forces may use mass and shock
to paralyze enemy forces, disrupt their ability to maneuver and adjust to the fluid-
ity of the battle, and demoralize individual unit members. 135 All of these effects
contribute to "the prompt submission of the enemy." 136
Employing overwhelming combat power at the decisive place and time of battle
(known as the principle of mass in the lexicon of military doctrine) 137 would argu-
ably be inconsistent with jws ad helium necessity. 138 Instead, a commander would
be restricted from employing any amount of force beyond what was actually neces-
sary to subdue the individual object of attack. 139 Thus, the assertion that the jus ad
helium suffices to justify necessary measures to subdue an opponent misses the
point. The question is not whether the resort to force by the State is necessary — a
question that certainly must be answered through the lens of jus ad helium neces-
sity. 140 The question is whether the amount of force then employed by the armed
forces of the State to subdue the enemy is justified, a question that must be an-
swered through the lens of a very different conception of necessity. 141
Even more problematic than the extension of jus ad helium necessity as an op-
erational regulatory norm is the extension of jus ad helium proportionality. Like
necessity, proportionality is a core principle of both the jws ad helium and the jws in
hello. ul And like necessity, the principle has a significantly different meaning in
each branch of the jws belli. 143 ' Conflating these disparate principles into a singular
regulatory norm substantially degrades the scope of lawful targeting authority and
confuses those charged with executing combat operations.
In the jus ad helium, proportionality really means proportionality. This might
seem like an odd statement, but it is critical when comparing the twojws belli variants
of the principle. Proportionality normally means no more than is absolutely nec-
essary to achieve a valid purpose. 144 It is a concept that is normally linked to a jus-
tification of necessity. 145 Similarly, under U.S. criminal law, actions in self-defense
are invalid if executed with more force than is necessary to reduce the threat. Use
of excessive force in that context, because not strictly necessary, is unjustified. 146
The;'ws ad helium reflects an analogous conception of proportionality. 147 First, the
amount of force a State is permitted to employ in self-defense is strictly limited
to that amount necessary to reduce the imminent threat. 148 Second, the source of
69
Blurring the Line between the Jus ad Bellum and the Jus in Bello
aggression is the beneficiary of the proportionality constraint. 149 In other words,
as in the criminal law context, a State (like an individual) responding to unlawful
aggression may be authorized to employ force in self-defense, but is prohibited
from responding to the source of aggression with any amount of force in excess of
that necessary to reduce that immediate threat.
In contrast, proportionality in the jus in bello context does not really mean pro-
portionality. Again, this may seem like an odd proposition. Nonetheless, even a
cursory review of the jus in bello proportionality principle validates this conclusion.
First, unlike traditional proportionality, the jus in bello variant in no way protects
the object of deliberate violence (the lawful target). Instead, the beneficiaries of
the protection are the knowing but non-deliberate victims of a deliberate attack —
civilians and civilian property in proximity to the lawful target. 150 Protecting these
potential victims from what is referred to in colloquial terms as collateral damage
and incidental injury reflects a fundamentally different purpose for this propor-
tionality constraint. Unlike in the self-defense context, jus in bello proportionality
is not directly linked to the necessity of subduing an imminent threat. Instead, the
objective of the principle is to protect innocent people and property in the vicinity
of a lawful object of attack from the consequences of employing combat power
against lawful targets. As for the lawful target itself, the suggestion that an attack
might be disproportionate is a legal oxymoron; the status alone justifies that
amount of force determined necessary to bring about enemy submission, which
justifies use of deadly force as a measure of first resort. 151 The only limitation on
that use of force is the prohibition against the use of methods (tactics) or means
(weapons) calculated or of a nature to cause superfluous injury or unnecessary
suffering. However, this rule is not synonymous with the protections provided by
the principle of proportionality, and rarely is considered a limitation on the em-
ployment of authorized weapon systems against enemy personnel, facilities or
equipment.
Second, beneficiaries of jus in bello proportionality (potential victims of collat-
eral damage and incidental injury) are not protected from disproportionate effects,
but from excessive effects. 152 An attack is unlawful within the meaning of jus in
bello proportionality only when the knowing but non-deliberate harm will be ex-
cessive in relation to the anticipated military advantage. While the principle, like its
ad bellum counterpart, does trigger a balance of interests, the fulcrum upon which
that balance is made is fundamentally different. Excessive is not, nor ever has been,
analogous to disproportionate. 153 To begin with, the meaning of the word is far
more elusive than that of traditional proportionality. Proportionality connotes
something slightly more than necessary to produce an outcome. While this is not a
precise concept, it lends itself to objective evaluation. Indeed, juries sitting in
70
Geoffrey S. Corn
judgment of defendants claiming the justification of self-defense routinely critique
the amount of force employed by the defendant, asking whether it was more than
necessary to respond to the threat.
Excessive, in contrast, connotes a significant imbalance. While the precise
meaning of excessive collateral damage or incidental injury remains nearly as elusive
today as it was when the concept was incorporated into Additional Protocol I, 154 one
thing is clear: it is not analogous to disproportionate harm as the term is used in re-
lation to traditional proportionality analysis. Instead, it means something more
analogous to harm so overwhelming that it actually nullifies the legitimacy of at-
tacking an otherwise lawful target. Thus, the jus in bello proportionality principle
does not obligate commanders to strictly limit the amount of force employed
against a lawful target to the absolute minimum necessary to eliminate a threat.
Instead, it obligates the commander to cancel an attack only when the anticipated
harm to civilians and/or civilian property is so beyond the realm of reason that in-
flicting that harm, even incidentally, reflects a total disregard for the innocent vic-
tims of hostilities. 155 In this sense, it is almost as if the law imputes an illicit state of
mind to a commander because of the disregard of the risk of overwhelming harm
to the civilian population. 156
This jus in bello variant of proportionality is further distinguished from its ad
helium counterpart because of the nature of operational and tactical targeting. In a
traditional self-defense context, the employment of force (individually or nation-
ally) is justified for the sole purpose of eliminating the imminent threat. In armed
conflict, the potential effect to be achieved by employing combat power against a
lawful target often varies depending on mission requirements. Accordingly, elimi-
nation of an individual threat is not the unitary objective of force employment. In-
stead, commanders leverage their combat power to achieve defined effects against
the range of enemy targets in the battlespace, effects that collectively facilitate enemy
submission. 157 Destruction is obviously one of these effects. However, doctrinal ef-
fects also include disruption, degradation, interdiction, suppression and harass-
ment. 158 Each of these effects requires a different type and amount of force to
achieve; and each effect therefore implicates a very different proportionality
analysis.
This variable nature of justifiable effects in armed conflict — known in opera-
tional terms as "effects-based operations" 159 — is a critical factor in applying the jus
in bello proportionality principle, and finds no analogue in self-defense targeting.
Nations employ force to reduce the threat, and only that amount of force required
to do so is justified. Accordingly, if disruption alone is sufficient to restore the non-
threat environment, the jus ad bellum obligates the State to employ force limited in
intensity to achieve this effect. However, no analogous minimum necessary force
71
Blurring the Line between the Jus ad Bellum and the Jus in Bello
obligation exists pursuant to the jus in bello proportionality principle. Instead, each
employment of force is operationally connected to the broader overall objective of
compelling enemy submission. Thus, disruption and bypass of enemy forces may
be a selected course of action at one point in the battle, while total destruction may
be selected for a similar enemy force at another point in the battle. Obviously, these
different selected effects will drive the amount of force employment required,
which will in turn influence the risk of collateral damage and incidental injury.
Furthermore, under the ad bellum construct, proportionality is traditionally as-
sessed at the strategic (macro) level. 160
The importance of this aspect of/ws in bello proportionality is reflected in the
requirement that the consequences of force employment be assessed against the
overall operational objective, and not the individual tactical objective. A number of
States included this macro conception of proportionality in understandings when
they ratified Additional Protocol I. 161 The motivation to enter such reservations
seems obvious: attribution of the value of employing combat power in armed con-
flict for purposes of balancing the anticipated effects of that employment against
collateral damage and incidental injury must be framed by the broader concept of
how it contributes to the legitimate operational objective of compelling enemy
submission, not through a micro assessment of whether it is sufficient to achieve
any given and isolated tactical objective. This aspect of jus in bello proportionality
once again reflects the most fundamental difference between the two variants of
the principle: the beneficiary of the protection is not the object of attack.
Collectively, all of these considerations indicate that extending jus ad bellum
proportionality to jus in bello decision making produces at worst a significant dis-
tortion of legitimate operational authority, and at best confusion as to the scope of
targeting authority. Are forces executing jus ad bellum self-defense missions obli-
gated to employ minimum force to subdue the object of attack? Is the object of at-
tack protected by the principle? Must proportionality be assessed based on an
exclusive consideration of reducing the threat presented by the immediate object
of attack, or may the broader impact on enemy forces be considered? These ques-
tions are nullified by maintaining the traditional division between jus ad bellum
authority and jus in bello regulation. Pursuant to this division, the nation acts in re-
sponse to an actual or imminent threat and the armed forces executing operations
pursuant to that justification employ force in order to bring about the prompt sub-
mission of the enemy entity posing the threat. In so doing, they balance the risk of
collateral damage and incidental injury to civilians and civilian property in the vi-
cinity of enemy objects of attack. But nothing obligates them to employ the mini-
mum amount of force to achieve each individual tactical objective.
72
Geoffrey S. Corn
V. If It Ain't Broke Don't Fix It: Jus in Bello Principles and Tactical Clarity
As noted earlier in this essay, some commentators continue to assert the inapplica-
bility of jus in bello principles to the struggle against transnational terrorism on the
basis that this struggle cannot qualify as armed conflict, or that if it does it is geo-
graphically restricted to zones of traditional combat operations. 162 Some of these
commentators also reject the legitimacy of invoking jus ad helium self-defense to
attack terrorists. This rejection at least renders their position logically consistent.
The same cannot be said for advocates of self-defense targeting: those who assert
the legitimacy of invoking the right of national self-defense to respond to the threat
of transnational terrorism, but insist such operations cannot normally qualify as
armed conflicts triggering thejws in bello. 163 If, as they assert, responding to terror-
ism with military force is justified pursuant to the jus ad bellum, then the use of
combat capability to execute such missions is, in the view of this author and others,
sufficient to qualify as armed conflict. Why is there such aversion to acknowledging
jus in bello applicability to military operations executed to achieve these legitimate
self-defense objectives? The most obvious answer appears to be the conclusion that
these operations, while justified as actions in self-defense, fail to satisfy the interna-
tionally accepted elements to qualify as armed conflicts. 164
This self-defense-without-armed-conflict approach reflects a visceral discom-
fort with the suggestion that States may properly invoke jus in bello authority
whenever they choose to employ combat power abroad. Transnational armed con-
flict opponents argue that since the inception of the "Global War on Terror," un-
less combat operations fit within the traditional Geneva Convention international/
internal armed conflict equation, they cannot be characterized as armed conflicts. 165
Others (including the author) have responded to this argument at length in previ-
ous articles. 166 However, what is perplexing is that this argument loses all merit
when connected with the self-defense targeting theory. That theory presupposes
the use of combat power to defend the nation against an imminent and ongoing
threat posed by transnational terrorist operatives.
If this is the basis for refusing to acknowledge the applicability of jus in bello
regulation, it is the ultimate manifestation of willful blindness. Essentially, self-
defense targeting proponents implicitly acknowledge operations conducted under
this authority involve armed hostilities against transnational non-State threats.
However, they then avoid assessing the nature of these hostilities, and how they
implicatejws in bello applicability, by substituting ad bellum principles to provide a
regulatory framework for operational execution. 167
Professor Kenneth Anderson's latest essay on this subject is particularly insight-
ful on the validity of the self-defense targeting concept. 168 An (or perhaps the)
73
Blurring the Line between the Jus ad Bellum and the Jus in Bello
original proponent of self-defense targeting, 169 Anderson candidly acknowledges
his reversal on this issue, and that what he calls "naked self-defense" is insufficient
to provide comprehensive regulation to transnational counterterror operations. 170
This is an important step in the right direction, for it will better focus debate on the
underlying and critical question of whether a nation's resort to force in self-defense
against an external non-State opponent can qualify as something other than armed
conflict. My response to this question has been consistent: when a State employs
combat power in a manner that indicates it has implicitly invoked LOAC principles
(by employing deadly force as a measure of first resort), it is engaged in an armed
conflict. As a result, it is bound to comply with core LOAC principles. 171 This does
not mean that any use of armed forces qualifies as armed conflict. Such a view
would certainly be overbroad, and I have argued against this approach consistently
in the past. However, when armed forces employed to achieve a national security
objective conduct operations pursuant to LOAC-based targeting authority — status-
based targeting — that combination of armed forces and engagement authority in-
dicates they are utilizing the "tools" of war, and must respect, at a minimum, the
core principles of the "rules" of war. 172
Irrespective of the relative support for or opposition to this interpretation of
LOAC applicability, it remains a critical question that has been obscured by the
self-defense targeting alternative. If, as proponents like Professor Paust argue, an
exercise of national self-defense against transnational non-State threats is not
armed conflict, focus must be redirected to determine the alternative controlling
legal framework for regulating the execution of such operations. Can national self-
defense be executed with an employment of military (or paramilitary) force falling
below the threshold of armed conflict? For example, are there situations where a
State when asserting the right of national self-defense is obligated by the jws ad bellum
proportionality requirement to rely on police powers instead of combat power?
This seems a particularly critical question in an era of transnational non-State
threats. Terrorism is obviously first on that list (at least for the United States), but
organized criminal syndicates operating across national boundaries, piracy and
non-State-generated cyber threats all share similarities with transnational terror-
ism. All of these threats challenge the national security of multiple States; all of
these threats emanate from entities that are rarely organized in traditional military
character; all of these threats may compel reliance on military force in response.
Yet in the view of many, the lack of organization, territorial control and concerted
military-type operations by these threats exclude responses (even with military
force) from the category of armed conflict. 173
Invoking the jus ad bellum as a justification to respond to such threats is insuffi-
cient to resolve this important question. Instead, resolving this question requires a
74
Geoffrey S. Corn
careful assessment of the nature of the threat, the nature of the requisite response
and the very real consequences of subjecting operational execution to either a law
enforcement or armed conflict legal framework. Some experts (the author in-
cluded) continue to believe that LOAC principles provide an effective and opera-
tionally logical framework to regulate any combat operation. But as noted above,
this view is based on the conclusion that the key trigger for application of these
principles is a use of force that reflects reliance on the principle of military objec-
tive. In those situations, there is arguably no value — and indeed substantial risk —
in attempting to substitute jus ad helium principles to regulate operational execu-
tion. However, there are plausible arguments that the nature of some self-defense
missions might justify a more restrictive operational framework based on a hybrid
of LOAC and law enforcement principles. 174 What seems clear, however, is that
even if true, these principles would be applied as the result of the nature of the
threat/response continuum, not as an extension of jus ad helium principles to regu-
late operational execution.
VI. One Step Forward, One Step Back: Are We Missing Something?
The statement by Legal Advisor Koh following the Bin Laden raid addressing U.S.
legal authority for the mission and for killing Bin Laden is perhaps as clear an artic-
ulation of a legal basis for a military action ever provided by the Department of
State. 175 Indeed, the fact that Koh articulated an official U.S. interpretation of both
the jus ad helium and jus in hello makes his use of a website titled Opinio Juris 176 es-
pecially significant (as such a statement by a government official in Koh's position
is clear evidence of opinio juris) . Unlike his earlier statement at a meeting of the
American Society of International Law, 177 Koh did not restrict his invocation of
law to the jus ad helium. Instead, he asserted the U.S. position that the mission was
justified pursuant to the inherent right of self-defense, but also that Bin Laden's
killing was lawful pursuant to the jws in hello. Koh properly noted that as a mission
executed in the context of the armed conflict with al Qaeda, the LOAC imposed no
obligation on U.S. forces to employ minimum necessary force. Instead, Bin
Laden's status as an enemy belligerent justified the use of deadly force as a measure
of first resort, and Bin Laden bore the burden of manifesting his surrender in order
to terminate that authority. Hence, U.S. forces were in no way obligated to attempt
to capture Bin Laden before resorting to deadly force. 178
A recent statement made by John Brennan, Deputy National Security Advisor
for Homeland Security and Counterterrorism, further clarifies the current admin-
istration's justification for using deadly force as a first resort against al Qaeda
operatives:
75
Blurring the Line between the Jus ad Bellum and the Jus in Bello
The United States does not view our authority to use military force against al-Qa'ida as
being restricted solely to "hot" battlefields like Afghanistan. Because we are engaged in
an armed conflict with al-Qa'ida, the United States takes the legal position that ... we
have the authority to take action against al-Qa'ida and its associated forces without do-
ing a separate self-defense analysis each time. . . .
This Administration's counterterrorism efforts outside of Afghanistan and Iraq are
focused on those individuals who are a threat to the United States, whose removal
would cause a significant — even if only temporary — disruption of the plans and capa-
bilities of al-Qa'ida and its associated forces. Practically speaking, then, the question
turns principally on how you define "imminence."
We are finding increasing recognition in the international community that a more
flexible understanding of "imminence" may be appropriate when dealing with terrorist
groups, in part because threats posed by non-state actors do not present themselves in
the ways that evidenced imminence in more traditional conflicts Over time, an in-
creasing number of our international counterterrorism partners have begun to recog-
nize that the traditional conception of what constitutes an "imminent" attack should
be broadened in light of the modern-day capabilities, techniques, and technological in-
novations of terrorist organizations. 179
These two articulations of the Obama administration's interpretation of interna-
tional law reflect an important evolution of the U.S. legal framework for military
operations directed against transnational terrorist operatives. They leave virtually
no doubt that the United States has embraced the concept of transnational armed
conflict, that the nation is engaged in an armed conflict against al Qaeda, that this
armed conflict is non-international within the meaning of the jus in bello and that it
transcends national borders. There is also no doubt that the United States invoked
the jus in bello as the framework to regulate execution of the Bin Laden mission.
Koh's clear emphasis on the in bello variants of the principles of distinction and
proportionality cannot be read as meaning anything else.
Koh, however, included one qualifier that suggests possible uncertainty. Reject-
ing the criticism that attacks such as that on Bin Laden are unlawful extrajudicial
killings, Koh noted that "a state that is engaged in an armed conflict or in legiti-
mate self-defense is not required to provide targets with legal process before the
state may use lethal force." 180 What is perplexing is the "or" in the statement. Koh
preserved a division between armed conflict and other actions in legitimate self-
defense. It is significant that he asserts the right to kill as a measure of first resort in
either context (which seems to rebut any inference that he is suggesting some ac-
tions in self-defense must be exercised pursuant to a law enforcement legal
76
Geoffrey S. Corn
framework). Why was that "or" necessary? What was Koh suggesting if he was not
suggesting a law enforcement limitation to some actions in self-defense?
One possible answer is that Advisor Koh is simply preserving the authority of
the United States to act in limited self-defense against an imminent terrorist threat
that is not considered associated with al Qaeda or the Taliban. In such situations,
the attack would accordingly be unrelated to the existing armed conflict the United
States asserts is ongoing with these enemies. If this was the meaning of his use of the
"or," it produces little confusion: imminent terrorist threats to the United States
may justify military action as an exercise of jus ad bellum self-defense, and use of
force for such a purpose triggers LOAC applicability. However, distinguishing
armed conflict from self-defense with an "or" could also be interpreted as an en-
dorsement of self-defense targeting, suggesting that uses of military force are regu-
lated by the jus in hello or jus ad bellum principles. This is an unnecessary
dichotomy, and hopefully one that Advisor Koh did not intend. There is no viable
reason to attempt to establish such a distinction; as discussed in this essay, the sug-
gestion that ad bellum principles are interchangeable with their in bello variants is
flawed and operationally confusing. 181
VII. Conclusion
Transnational non-State threats are not going away any time soon. Indeed, it is
likely that identifying a rational and credible legal basis for national response to
such threats will continue to vex policymakers and legal advisors in the coming years.
These threats will almost certainly lead States to continue to invoke the inherent
right of national and/or collective self-defense to justify extraterritorial responses.
This legal basis is not, however, an adequate substitute for defining the legal frame-
work to regulate the operational exercise of this self-defense authority. Nonethe-
less, the advent of the self-defense targeting theory purports to be just that.
The jus ad bellum was never conceived as a legal framework to regulate the exe-
cution of military operations. Instead, it is analogous to the law that permits indi-
viduals to act in self-defense when faced with an imminent threat of death or
grievous bodily harm. Like the domestic self-defense concept, jus ad bellum self-
defense reflects a necessity foundation based on minimizing situations where
States resort to force and limiting the risk of conflagration resulting from such re-
sort. Self-defense, as a form of self-help, is intended to be a measure of last resort,
and Xhtjus ad bellum principles of necessity and proportionality reflect that foun-
dation. In contrast, the jus in bello variants of these two principles are based on a
fundamentally different foundation: facilitating the prompt submission of opera-
tional opponents in the collective — not individual — sense. Accordingly, the scope
77
Blurring the Line between the Jus ad Bellum and the Jus in Bello
of permissible violence justified by the jus in bello is fundamentally different from
that tolerated through the exercise of peacetime self-defense.
Attempting to substitute jus ad helium principles for their jus in bello variants
is not only confusing; it fundamentally degrades target engagement authority.
As discussed in this essay, this degradation is the result of imposing peacetime
concepts on wartime operations. It may be conceivable that some actions in self-
defense — especially in response to non-State threats — may permit only a law
enforcement-type response. For example, if members of Mexican drug cartels be-
gan engaging in violence on the U.S. side of the border requiring, in the judgment
of the President, some action to neutralize this threat, armed forces might be used
to augment law enforcement officers during a mission to capture cartel members
for subsequent trial. In such a situation, the use of armed force might be subject
to law enforcement-type use of force authority. However, even if such situations
are conceptually lodged within the scope of national self-defense authority, this
cannot justify the wholesale abandonment of jus in bello principles. Instead, the na-
ture of the threat and the authority invoked by the State to respond to that threat
must dictate the existence of armed conflict. When States utilize armed forces and
grant them the authority to engage opponents pursuant to the LOAC rule of mili-
tary objective — an invocation revealed by the employment of deadly force as a
measure of first resort — it indicates the existence of an armed conflict. It is the jws
in bello, and not thejws ad bellum, that must regulate such operations.
Notes
1. Eyal Benvenisti, Rethinking the Divide Between Jus ad Bellum and Jus in Bello in War-
fare Against Nonstate Actors, 34 YALE JOURNAL OF INTERNATIONAL LAW 541 (2009) (defining
jus in bello as "the law governing the conduct of hostilities").
2. Id. (definingjus ad bellum as "the law governing resort to force").
3. Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came to Debate
Whether There Is a "Legal Geography of War" 7 (WCL Research Paper No. 2011-16, 2011),
available at http://ssrn.com/abstract= 1824783.
4. Id.
5. Nicholas Schmidle, Getting Bin Laden: What Happened That Night in Abbottabad, THE
NEW YORKER, Aug. 8, 201 1, at 34, available at http://www.newyorker.com/reporting/201 1/08/
08/1 10808fa_fact_schmidle (detailing the raid into Pakistan executed without the permission
or knowledge of the Pakistani government by American forces to kill Osama Bin Laden).
6. U.S. Attorney General: Bin Laden Raid "Lawful," AGENCE FRANCE-PRESSE (May 4,
201 1 ), available at http://www.google.com/hostednews/afp/article/ALeqM5gYsheAr3sLXs6ERJ
-d6pkkoULHKg?dodd=CNG.e73a3d4ada4c822cbcaee9345abb3385.dl (quoting White House
spokesman Jay Carney: there was "no question" the raid was legal and that it was "an act of
national self-defense").
78
Geoffrey S. Corn
7. The Killing of bin Laden: Was It Legal?, CNN WORLD (May 4, 2011), http://articles
.cnn.com/2011-05-04/world/bin.laden.legal_l_al-qaeda-leader-bin-cia-director-leon-panetta
?_s=PM:WORLD (again quoting White House spokesman Jay Carney, "[the raid] was con-
ducted in a manner fully consistent with the laws of war").
8. U.S. Attorney General: Bin Laden Raid "Lawful," supra note 6 (discussing the shoot-
first-or-capture orders to the SEALs who killed Osama Bin Laden).
9. See John O. Brennan, Assistant to the President for Homeland Security and Counter-
terrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening
Our Security by Adhering to Our Values and Laws (Sept. 16, 2011), http://www
.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our
-security-adhering-our-values-an. See also Attorney General Eric Holder, Remarks at North-
western University School of Law (Mar. 5, 2012), http://www.justice.gov/iso/opa/ag/speeches/
20 12/ag-speech- 1203051.html; Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, 39
Denver Journal of International Law and Policy ioi, 108 (2010).
10. Vogel, supra note 9, at 1 14.
11. Robert D. Sloane, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and
Jus in Bello in the Contemporary Law of War, 34 YALE JOURNAL OF INTERNATIONAL LAW 47, 67
(2009) (asserting the use of force must be necessary and proportional with respect to both the
jus ad bellum and the ;'us in bello).
12. Geoffrey S. Corn & Eric T. Jensen, Transnational Armed Conflict: A "Principled" Ap-
proach to the Regulation of Counter-Terror Combat Operations, 42 ISRAEL LAW REVIEW 46, 78
(2009); Sloane, supra note 1 1, at 69-78.
13. See generally Eran Shamir-Borer, Revisiting Hamdan v. Rumsfeld's Analysis of the Laws
of Armed Conflict, 21 EMORY INTERNATIONAL LAW REVIEW 601 (2007).
14. See Anderson, supra note 3.
15. Mat 4.
16. Christine Gray, President Obama's 2010 United States National Security Strategy and In-
ternational Law on the Use of Force, 10 CHINESE JOURNAL OF INTERNATIONAL LAW 35, 43
(2011). See Headquarters, Department of the Army, FM 3-60, The Targeting Process ^ 1-14
(2010).
17. See generally Geoffrey S. Corn & Eric T. Jensen, Untying the Gordian Knot: A Proposal
for Determining Applicability of the Laws of War to the War on Terror, 81 TEMPLE LAW REVIEW
787 (2008); Rebecca Ingber, Untangling Belligerency From Neutrality in the Conflict with Al-
Qaeda, 47 TEXAS INTERNATIONAL LAW JOURNAL 75, 80-81 (201 1).
18. Corn & Jensen, supra note 17.
19. See William H. Taft IV, Self-Defense and the Oil Platforms Decision, 29 YALE JOURNAL
OF INTERNATIONAL LAW 295, 303-6 (2004). The International Court of Justice considered a
case between Iran and the United States, commonly known as Oil Platforms, named for Iranian
platforms attacked by the United States in retaliation for Iranian strikes on Kuwaiti vessels un-
der U.S. control. Id. 296-98. See also Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6). The
Court dismissed the case, but not before spending a substantial amount of time discussing self-
defense in the realm of international law. See generally Taft, supra, at 296-98.
20. See generally Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The
Need to Recognize a Hybrid Category of Armed Conflict, 40 VANDERBILT JOURNAL OF
TRANSNATIONAL LAW 295 (2007) (a detailed discussion of the term "transnational armed con-
flict"); Robert J. Delahunty & John C. Yoo, What Is the Role of International Human Rights Law
in the War on Terror?, 59 DEPAUL LAW REVIEW 803 (2010).
21. Corn, supra note 20, at 300-10; Delahunty & Yoo, supra note 20, at 825-34.
79
Blurring the Line between the Jus ad Bellum and the Jus in Bello
22. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Held, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31 [hereinafter GC I]; Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; Convention Rel-
ative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [here-
inafter GC III); Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, b U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV).
23. See Fionnuala Ni Aolain, Hamdan and Common Article 3: Did the Supreme Court Get It
Right?, 91 MINNESOTA LAW REVIEW 1523, 1525-34 (2007); Corn, supra note 20, at 300-301
(discussing the traditional two LOAC triggers used before the concept of transnational conflict
emerged).
24. See International and Operational Law Department, The Judge Advocate General's Le-
gal Center and School, Department of the Army, Law of War Workshop Deskbook 25-34 (Bill
J. Brian et al. eds., 2004); see also UNITED KINGDOM MINISTRY OF DEFENCE, THE MANUAL OF
the Law of Armed Conflict j 3.1 (2004).
25. see commentary to geneva convention i for the amelioration of the
Condition of the Wounded and Sick in armed Forces in the Field 19-23 (Jean S. Pictet
ed., 1952). A similar commentary was published for each of the four Geneva Conventions. Be-
cause Articles 2 and 3 are identical — or common — to each Convention, however, the commen-
tary for these articles is also identical in each of the four commentaries.
26. See Ni Aolain, supra note 23; Corn, supra note 20, at 300.
27. Corn, supra note 20, at 307.
28. Id. at 309.
29. Id. at 305 (noting that the conflict between Israel and Hezbollah and the United States'
removal of General Noriega did not fall into either category).
30. Id. at 300 (explaining that the only two triggers of war as set out by the Geneva Convention-
based law-triggering paradigm are international armed conflict between two sovereign nations
and non-international armed conflict taking place within the borders of a State that is a party to
the conflict).
31. See U.S. Department of Defense, Directive 5100.77, DoD Law of War Program (1998)
[hereinafter 1998 DoD Law of War Program]. See also Corn, supra note 20, at 314 ("Fortu-
nately, the policy-based application of the principles of the law to the entire range of combat
operations has mitigated this uncertainty and provided a consistent regulatory framework at
the operational and tactical level of command."); David E. Graham, Counter insurgency, the
War on Terror, and the Laws of War: A Response, 95 VIRGINIA LAW REVIEW IN BRIEF 79, 85-86
(2009) (citing American policy-based approach to law of war applicability and its impact on
counterinsurgency operations).
32. See Corn, supra note 20, at 314.
33. See Memorandum from Assistant Attorney General Jay S. Bybee to Counsel to the Pres-
ident Alberto R. Gonzales and General Counsel of the Department of Defense William J.
Haynes II, Application of Treaties and Laws to al Qaeda and Taliban Detainees 1 (Jan. 22,
2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.22.pdf [here-
inafter Bybee Application of Treaties and Laws Memorandum] (asserting treaties that form the
laws of armed conflict do not apply to the conditions of detention and the procedures for trial
of captured al Qaeda or Taliban members); see also Memorandum from Assistant Attorney
General Jay S. Bybee to Counsel to the President Alberto R. Gonzales, Status of Taliban Forces
under Article 4 of the Third Geneva Convention 1 (Feb. 7, 2002), available at http://
www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/020207.pdf (asserting captured members of
80
Geoffrey S. Corn
the Taliban do not meet the requirements under the Geneva Convention Relative to the Treat-
ment of Prisoners of War under Article 4(A)(1), (2) or (3) and thus can be held indefinitely
without convening a tribunal); Memorandum from President George W. Bush to Vice Presi-
dent Dick Cheney, Regarding Humane Treatment of al Qaeda and Taliban Detainees 2 (Feb. 7,
2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf (adopt-
ing the recommendations of Bybee to not apply Article 3 of Geneva Convention III to detained
al Qaeda or Taliban members).
34. David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97
CALIFORNIA LAW REVIEW 693, 701 (2009) (discussing the law of war allowance of preventive
detention, and the Hamdi decision that allowed even U.S. citizens to be preventively detained
in some circumstances).
35. See Hamdi v. Rumsfeld, 542 U.S. 507 (2009).
36. Hamdan v. Rumsfeld, 548 U.S. 557, 628-30 (2006) (discussing the government's posi-
tion that Hamdan was not entitled to the full protections of the Geneva Conventions because
the conflict did not clearly fit into Article 2 or 3 of the Conventions).
37. Id.
38. Id.
39. See generally Michael F. Lohr & Steve Gallotta, Legal Support in War: The Role of Mili-
tary Lawyers, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 465 (2003) (discussing the role of
the military lawyer in conflicts ranging from declared State-on-State war to the war on terror).
See also 1998 DoD Law of War Program, supra note 31. The exact policy mandate required that
the heads of the DoD components "[ejnsure that the members of their Components comply
with the law of war during all armed conflicts, however such conflicts are characterized, and
with the principles and spirit of the law of war during all other operations." Id., ^ 5.3.1. See also
U.S. Department of Defense, Directive 231 1.0 IE, DoD Law of War Program J 4.1 (2006), available
at http://www.dtic.mil/whs/directives/corres/pdf/231101e.pdf [hereinafter Directive 2311. 01E]
("Members of the DoD Components comply with the law of war during all armed conflicts,
however such conflicts are characterized, and in all other military operations.").
40. See generally Corn, supra note 20; Eyal Benvenisti, The Legal Battle to Define the Law on
Transnational Asymmetric Warfare, 20 DUKE JOURNAL OF COMPARATIVE AND INTERNATIONAL
LAW 339, 342 (2010).
41. See Hans-Peter Gasser, Internationalized Non- International Armed Conflicts: Case Stud-
ies of Afghanistan, Kampuchea, and Lebanon, 33 AMERICAN UNIVERSITY LAW REVIEW 145, 147
(1983) (utilizing the term "internationalized non-international armed conflict" to denote an
armed conflict between State and non-State forces that transcends national boundaries).
42. Natasha Balendra, Defining Armed Conflict, 29 CARDOZO LAW REVIEW 2461, 2512
(2008) (asserting many scholars believe these types of conflicts should be classified as law en-
forcement operations and conducted accordingly).
43. See generally Benvenisti, supra note 40 (entire essay discussing "tension between the
two conflicting visions on the regulation of transnational armed conflict").
44. See Corn & Jensen, supra note 12, at 66 (discussing Professor Yoram Dinstein's classifi-
cation of counterterrorism activities as extraterritorial law enforcement).
45. 548 U.S. 557 (2006).
46. Id. at 629-32.
47. Id.
48. Id.
49. Id.
81
Blurring the Line between the Jus ad Bellum and the Jus in Bello
50. See, e.g., Corn & Jensen, supra note 12; Michael Greenberger, You Ain't Seen Nothin
Yet: The Inevitable Post-Hamdan Conflict Between tlte Supreme Court and the Political Branches,
66 MARY! and 1. \\\ REVD W 805, 833-34 (2007).
51. Corn & Jensen, supra note 12.
52. Michael W. Lewis, International Myopia: Hatndan's Shortcut to "Victory," 42
University of Richmond Law review 687, 706 (2008) C[T]he Hamdan court defined
armed 'conflict not of an international character,' determined the requirements of a regularly
constituted court, and decided what judicial guarantees are recognized as indispensable by civi-
lized people in just over five pages . . . without significantly reviewing the drafting history of
C Common Article 3 and the Additional Protocols, or investigating any state practice outside this
country."). See Bybee Application of Treaties and Laws Memorandum, supra note 33, at 10 (as-
serting the conflict with al Qaeda does not fit into either of the two traditional categories of
armed conflict as established by Articles 2 and 3 of the Geneva Conventions).
53. See Vogel, supra note 9, at 132 (mentioning that although a majority of the United
States' combat operations against al Qaeda are in Afghanistan, it does use drone strikes against
al Qaeda operatives in Yemen and Somalia). See also Gabor Rona, Interesting Times for Interna-
tional Humanitarian law: Challenges from the "War on Terror" 27 FLETCHER FORUM OF
WORLD AFFAIRS 55, 62 (2003) (mentioning one such attack in Yemen in 2004). See International
Law Association, Use of Force Committee, Final Report on the Meaning of Armed Conflict in In-
ternational Law 29-32 (2010), available at http://www.ila-hq.org/en/committees/index.cfm/cid/
1022 [hereinafter Final Report on the Meaning of Armed Conflict] (discussing the criteria of
intensity and territorial scope aspects of classifying hostilities as armed conflict).
54. Final Report on the Meaning of Armed Conflict, supra note 53.
55. Id. at 30.
56. Jeffrey F. Addicott, Efficacy of the Obama Policies to Combat Al-Qa y eda, the Taliban, and
Associated Forces — the First Year, 30 PACE LAW REVIEW 340, 353-54 (2010) (mentioning Presi-
dent Obama's campaign desire to dismantle key elements of President Bush's policies on com-
bating terrorism and his actions shortly after entering office attempting to do so).
57. See Anderson, supra note 3, at 1 (mentioning the Obama administration's expanded
use of drone strikes in countries outside of Afghanistan).
58. Tess Bridgeman, The Law of Neutrality and the Conflict with Al Qaeda, 85 NEW YORK
UNIVERSITY LAW REVIEW 1 186, 1 191 (2010) (discussing the Obama administration's immedi-
ate stance that those taken prisoner in Afghanistan would be detained pursuant to the law of
armed conflict). See also Robert M. Chesney, Who May Be Held? Military Detention through the
Habeas Lens, 52 BOSTON COLLEGE LAW REVIEW 769, 830-31 (201 1 ) (discussing the Obama ad-
ministration's decision early in March 2009 to continue to assert its authority "to detain with-
out charge pursuant to a substantive detention standard not much different from the
Combatant Status Review Tribunal (CSRT) standard of the Bush administration").
59. Vogel, supra note 9, at 109 (mentioning the United States' use of drone strikes in Paki-
stan, Somalia and Yemen).
60. Jeff Bovarnick, A Review of: The War on Terror and the Laws of War: A Military Perspec-
tive, 44 NEW ENGLAND LAW REVIEW 885, 892 (2010) (book review) (citing the use of deadly
force as the most basic right under the laws of armed conflict). See also Schmidle, supra note 5
(noting the "killing as a first resort" mentality was present, because nobody on the mission to
kill Osama Bin Laden wanted detainees).
61. Bovarnick, supra note 60, at 892 (again noting that the use of deadly force as a first re-
sort in military operations is inconsistent with law enforcement norms).
82
Geoffrey 5. Corn
62. See generally Jordan J. Paust, Self-Defense Targetings of Non-State Actors and
Permissibility of U.S. Use of Drones in Pakistan, 19 JOURNAL OF TRANSNATIONAL LAW AND
POLICY 237 (2010) (the entire article discussing this new alterative legal framework).
63. See Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law, in
Legislating the War on Terror: An Agenda for Reform 346 (Benjamin Wittes ed.,
2009). Kenneth Anderson is a professor of law at the Washington College of Law at American
University. Professor Anderson is also a visiting fellow at the Hoover Institution on War, Revo-
lution and Peace, Stanford University.
64. See Anderson, supra note 3, at 15. See also Kenneth Anderson, The Rise of International
Criminal Law: Intended and Unintended Consequences, 20 EUROPEAN JOURNAL OF
INTERNATIONAL LAW 331, 354 (2009) ("Although in theory a single adjudicator could hear
both the resort to force and conduct questions [jus ad helium and jus in bello], and simply
maintain perfect independence, in reality the same tribunal — even with separate panels —
would tend to conflicts of interest, path dependence between the two supposedly independent
areas.") (emphasis added).
65. See Paust, supra note 62, at 262 (justifying the ability of the United States to capture
Osama Bin Laden or other members of al Qaeda in Afghanistan or other countries simply be-
cause the hostilities with al Qaeda were commenced under a notion of self-defense). See also
Jordan Paust, Permissible Self-Defense Targeting and the Death of Bin Laden, 39 DENVER
JOURNAL OF INTERNATIONAL LAW AND POLICY 569 (2011). Professor Paust is the Mike and
Teresa Baker Law Center Professor of International Law at the Law Center of the University of
Houston.
66. Jordan J. Paust, War and Enemy Status After 9/11: Attacks on the Laws of War, 28 YALE
JOURNAL OF INTERNATIONAL Law 325, 326 (2003) ("the United States simply cannot be at war
with bin Laden and al Qaeda").
67. See id. generally.
68. See Paust, supra note 62, at 279 ("As this article affirms, self-defense can be permissible
against non-state actor armed attacks, and measures of self-defense can occur in the territory of
another state without special consent of the other state or imputation of the armed attacks to
that state as long as the measures of self-defense are directed against the non-state actors.").
69. See Anderson, supra note 3, at 7 (labeling the use of force under self-defense that would
not be part of an armed conflict "naked self-defense").
70. See Paust, supra note 62, at 270 (stating reasonable necessity and proportionality are in-
tegrated into the law of armed conflict under the Geneva Conventions). See also Paust, supra
note 65, at 572-73 (stating the need to conduct self-defense targeting within the principles of
distinction, reasonable necessity and proportionality to protect the general human right to life).
71. See generally Paust, supra note 65, at 577-78 (discussing generally and specifically
how the justification for self-defense targeting of non-State actors determines which targets
are allowed to be attacked and where, as long as such decisions are based on necessity and
proportionality).
72. See Benvenisti, supra note 1, at 541 (stating the traditional clear distinction between the
jus ad bellum and the jus in bello).
73. G.I.A.D. Draper, Ethical and Juridical Status of Constraints in War, 55 MILITARY LAW
REVIEW 169, 174(1972) (the paper was first presented by Colonel Draper at the Judge Advocate
General's School, U.S. Army, Charlottesville, Virginia, on September 10, 1971).
74. See Sloane, supra note 1 1, at 48 (discussing the Special Court for Sierra Leone's Appeals
Chamber's clearly separating jus ad bellum and jus in bello by refusing to justify a defendant's
actions based on the legitimacy of his right to fight).
83
Blurring the Line between the Jus ad Bellum and the Jus in Bello
75. Id. at 65 (discussing the UN Charter's application of jus in bello to all belligerents, re-
gardless of their jus ml helium status).
76. Id. ("Articles 1 and 2 of the Geneva Conventions of 1949 affirmed that the ;i/s in bello
codified in those treaties applied in 'all circumstances' and to 'all cases of declared war or of any
other armed conflict. "').
77. hi.
78. See GC I, GC II, GC III, GC IV, all supra note 22. See also Sloane, supra note 1 1, at 65.
79. See COMMENTARY TO GENEVA CONVENTION III RELATIVE TO THE TREATMENT OF
PRISONERS OF War 22 (Jean S. Pictet ed., 1960) [hereinafter COMMENTARY III].
80. Id. at 28-35. See also Geoffrey S. Corn, "Snipers in the Minaret — What Is the Rule?" The
Law of War and the Protection of Cultural Property: A Complex Equation, ARMY LAWYER, July
2005, at 36 (endnote 27 discusses this topic at great length, citing to the Commentary, supra).
81. See COMMENTARY III, supra note 79, at 22.
82. See Hamdan v. Rumsfeld, 548 U.S. 557, 628-33 (2006) (finding the classification or de-
scription of the conflict between the United States and al Qaeda did not impact the rights de-
tainees were entitled to under the Geneva Conventions). See also Sloane, supra note 1 1, at 75
(recognizing Common Article 3 of the Geneva Conventions' application in all cases of armed
conflict as "custom," with no mention of/us ad bellum) and at 48 (discussing the Special Court
for Sierra Leone's Appeals Chamber's clearly separating jus ad bellum and jus in bello by refus-
ing to justify a defendant's actions because of the legitimacy of his right to fight); Directive
231 1.0 IE, supra note 39 (ordering all U.S. armed forces to comply with principles of the law of
war during all military operations).
83. See, e.g., Directive 231 1.0 IE, supra note 39.
84. See Antoine Bouvier, Assessing the Relationship between Jus in Bello and Jus ad Bellum:
An "Orthodox" View, 100 AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 109, 1 10
(2006) ("The idea that both branches [jus ad bellum and jus in bello] operate autonomously is
firmly rooted in (1) the legal literature, (2) State practice, (3) the jurisprudence of national and
international courts and (4) several treaties."). See also COMMENTARY III, supra note 79.
85. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts pmbl., June 8, 1977, 1125 U.N.T.S. 3
[hereinafter AP I] ("Reaffirming further that the provisions of the Geneva Conventions of 12
August 1949 and of this Protocol must be fully applied in all circumstances to all persons who
are protected by those instruments, without any adverse distinction based on the nature or origin
of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.").
86. See Directive 231 1.0 IE, supra note 39 (ordering all U.S. armed forces to comply with
principles of the law of war (jus in bello) during all military operations); see also 1998 DoD Law
of War Program, supra note 31 (the predecessor to DoD Directive 231 1.0 IE, which mandated
that heads of Defense components "[ejnsure that the members of their DoD Components
comply with the law of war during all armed conflicts, however such conflicts are characterized,
and with the principles and spirit of the law of war during all other operations").
Whether this policy directive reflects an emerging principle of customary international law
that requires compliance with core LOAC principles during all military operations as a "default"
setting is a question beyond the scope of this essay. However, in prior articles this author has as-
serted that the policy does, at a minimum, suggest that a strict interpretation of the situations
that trigger application of these core principles is inconsistent with the underlying objective of
the Geneva Conventions to ensure that no military operation falls outside the scope of humani-
tarian regulation. See Corn, supra note 20.
84
Geoffrey S. Corn
87. See generally Paust, supra note 62 (relying simply on the right of self-defense, not on the
illegality of the attack by al Qaeda, to defend the United States' use of drone attacks against
non-State actors).
88. See generally id. (discussing self-defense targeting in great detail throughout the article).
89. Id.
90. Id.
91. Id.
92. See Sloane, supra note 11, at 104 (recognizing the traditional separation — that ad
helium judgments should not have an impact on in hello obligations). See also MICHAEL
WALZER, JUST AND UNJUST WARS 21 (4th ed. 2006) (referring to ad helium and in hello princi-
ples as "logically independent").
93. See Sloane, supra note 1 1, at 50 (discussing the troubling results of conflating ad helium
and in hello principles, citing examples such as the 1999 NATO conduct in Serbia and the Bush
administration's authorization of torture against detainees).
94. See Benvenisti, supra note 1, at 541-42 (mentioning the current scholarly distinction
between ad helium and in hello principles).
95. Id. at 546 (discussing the greater impact that ad helium principles have over in hello
principles in military operations).
96. See Sloane, supra note 11, at 49-50 (discussing actions in Sierra Leone's civil war,
NATO's actions against Serbia and the United States' post-9/1 1 torture of detainees and the in-
appropriate attempts of each relevant party to justify its in hello conduct with the legitimacy of
its ad helium cause).
97. See Benvenisti, supra note 1, at 546 ("the percolation of ad helium considerations into
the jws in hello proportionality analysis can prove a rather sophisticated and effective constraint
on the stronger regular army").
98. See Sloane, supra note 11, at 103 (discussing the benefits of having separated ad helium
and in hello principles: ad helium principles to prohibit the use of force except in self-defense
situations and in hello principles to include necessity, proportionality and discrimination in
conducting armed conflict).
99. See Paust, supra note 62, at 250 (justifying the United States' use of non-State actor tar-
geting by drones across international borders as a tool in the war against al Qaeda based on the
necessity of self-defense).
100. See Alexander Orakhelashvili, Overlap and Convergence: The Interaction between Jus ad
Bellum and Jus in Bello, 12 JOURNAL OF CONFLICT & SECURITY LAW 157, 164 (2007) (citing the
existence of the concept of necessity in both the jws ad bellum and jus in bello). See also Sloane,
supra note 1 1, at 52-53 (discussing both ad bellum and in bello proportionality) and at 67 ("any
use of force must be necessary and proportional relative to both the jus ad bellum and the jus in
bello').
101. See Michael Novak, just Peace and the Asymmetric Threat: National Self-Defense in Un-
charted Waters, 27 HARVARD JOURNAL OF LAW & PUBLIC POLICY 817, 827 (2004) (including
the use of war as a last resort in considerations for jus ad bellum).
102. See id. (including proportionality and discrimination between combatants and non-
combatants as considerations for the jus in bello).
103. See id. (ad bellum principles restrict the use of force to only proportionate means when
necessary). See also Military and Paramilitary Activities in and against Nicaragua (Nicar. v.
U.S.), 1986 I.C.J. 14, If 194 (June 27); Legality of the Threat or Use of Nuclear Weapons, Advi-
sory Opinion, 1996 I.CJ. 226, 1f 142 (July 8); Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, J 43
85
Blurring the Line between the Jus ad Bellum and the Jus in Bello
(Nov. 6); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 168," 147 (Dec. 19).
104. David Rodin, War AND SELF-DEFENSE 1 10— 1 1 (2002) (stating it is "universally ac-
knowledged that the right of national-defense is bounded by the same intrinsic limitations as
the right of personal self-defense").
105. SeeShana Wallace, Beyond Imminence: Evolving International Law and Battered Women s
Right to Self- Defense, 7 \ UNIVERSITY OF CHICAGO LAW REVIEW 1749, 1766-77 (2004) (compar-
ing the necessity and proportionality requirements of personal and national self-defense).
106. Id.
107. Id.
108. Id.
109. Thomas Yoxall, Iraq and Article 51: A Correct Use of Limited Authority, 25
INTERNATIONAL LAWYER 967, 986 (1991) (discussing the UN Charter requirements of neces-
sity and proportionality in the use of force in self-defense).
110. U.N. Charter art. 1.
111. Id.
112. Id., art. 51.
113. Scott S. Evans, International Kidnapping in a Violent World: Where the United States
Ought to Draw the Line, 137 MILITARY LAW REVIEW 187, 240 (1992) (detailing purposes for the
Article 51 notification requirement, including creating awareness of the aggression).
1 14. Brian L. Bengs, Legal Constraints upon the Use of a Tactical Nuclear Weapon Against the
Natanz Nuclear Facility in Iran, 40 GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 323,
370 (2008) (ad bellum proportionality "is intended to prevent a state from overreacting to a sit-
uation and escalating the level of conflict").
115. Id. This is not to suggest the absence of uncertainty related to the scope of action per-
mitted pursuant to the jus ad bellum principle of proportionality. Indeed, this remains an area
of significant international legal debate. However, what seems relatively clear is that whatever
the permissible scope of action, the objective is strictly limited to reduction of the imminent
threat that triggers the right of national or collective self-defense. As Professor David Kretzmer
notes in the abstract for his forthcoming analysis of jus ad bellum proportionality:
While force used by a state in self-defence must meet the demands of proportionality
there is confusion over the meaning of the term in this, ius ad bellum, context. One
source of confusion lies in the existence of two competing tests of proportionality, the
"tit for tat" and the "means-end" tests. Since the legality of unilateral use of force by a
state depends on the legitimacy of its aim — self-defence against an armed attack — the
"means-end" test would seem more appropriate. However, there is no agreement over
the legitimate ends of force employed to achieve this aim. Is the defending state limited
to halting and repelling the attack that has occurred, or may it protect itself against
future attacks by the same enemy? May a state that has been attacked use force in order
to deter the attacker from mounting further attacks? The "means-end" test of propor-
tionality rests primarily on the necessity of the means used to achieve legitimate ends.
Disagreements over proportionality are in this context usually really disagreements over
those ends. While the appropriate test in this context is generally the "means-end" test,
in some cases, such as use of force in response to a limited armed attack, the "tit for tat"
test of proportionality might be more appropriate.
See David Kretzmer, The Inherent Right of Self- Defence and Proportionality in Ius ad Bellum,
EUROPEAN JOURNAL OF INTERNATIONAL LAW (forthcoming 2012) (emphasis added), available
at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=20 14282; see also Taft, supra note 19
86
Geoffrey S. Corn
(criticizing the overly restrictive interpretation of jus ad bellum proportionality adopted by the
International Court of Justice in the Oil Platforms decision).
1 16. See Sloane, supra note 1 1, at 67 ("The in hello concepts of necessity and proportionality
have ad bellum analogues — with quite distinct meanings.").
1 17. Id. at 74 (stating conflating the proportionality of jus ad bellum and jus in bello would
allow a nation's self-serving ad bellum reason for engaging in conflict to impact its in bello conduct
during the hostilities with the ultimate outcome being negative for the soldiers in the field).
118. Michael N. Schmitt, Clipped Wings: Effective and Legal No-Fly Zone Rules of Engage-
ment, 20 LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL 754
(1998) (stating necessity in reference to self-defense pertains to when force may be resorted to,
contrasted to necessity in the jus in bello context, which determines how force may be used).
119. See Department of the Army, FM 27-10, The Law of Land Warfare 1J 3(a) (1956); David
Kaye, Khashiyev & Akayeva v. Russia; Isayeva, Yusupova & Basayeva v. Russia; Isayeva v. Russia,
99 AMERICAN JOURNAL OF INTERNATIONAL LAW 873, 880 (2005) (jus in bello necessity's func-
tion is to ensure that force is used to obtain a military objective). See also Craig J.S. Forrest, The
Doctrine of Military Necessity and the Protection of Cultural Property During Armed Conflicts, 37
California Western International Law journal 177, 181 (2007) {in bello necessity
forces a party to strike a balance between obtaining military victory and observing the needs of
humanity) and 183 (in bello necessity allows the pursuit of military objectives, which includes
disabling as many enemy combatants as possible, so long as it is done in a manner that mini-
mizes suffering and damage); Department of the Air Force, AFP 110-31, International Law —
The Conduct of Armed Conflict and Air Operations 1-5-1-6 (1976) [hereinafter AFP 110-31]
("Military necessity is the principle which justifies measures of regulated force not forbidden by
international law which are indispensable for securing the prompt submission of the enemy,
with the least possible expenditures of economic and human resources."); William A. Wilcox
Jr., Environmental Protection in Combat, 17 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL
299, 302 (1993) ("The concept of military necessity provides that a combatant is justified in ap-
plying any force necessary to secure the complete submission of the enemy as soon as possi-
ble — as long as the means are not prohibited by provisions of the laws of war.").
120. See Christian Henderson, The 2010 United States National Security Strategy and the
Obama Doctrine of "Necessary Force," 15 JOURNAL OF CONFLICT 8c SECURITY LAW 403, 423
(2010) (identifying that the condition in necessity as it applies to self-defense is that the use of
force be used only as a measure of last resort). See also Kaye, supra note 1 19, at 880 ("Necessity
in the ;us in bello does not require force to be a last resort.").
121. See generally Laurie R. Blank 8c Benjamin R. Farley, Characterizing US Operations in Pa-
kistan: Is the United States Engaged in Armed Conflict?, 34 FORDHAM INTERNATIONAL LAW
JOURNAL 151, 187 (2011) (distinguishing between armed conflict, which grants the authority to
use force as a first resort, and law enforcement, which only allows force in self-defense).
122. See Matthew C. Waxman, The Structure of Terrorism Threats and the Laws of War, 20
Duke Journal of Comparative and International Law 429, 447 (2010) ("jus ad bellum is
fundamentally about promoting peaceful resolution of conflicts and balancing restraints on ag-
gression with legitimate self-defense").
123. See AP I, supra note 85, art. 52(2) ("Attacks shall be limited strictly to military objec-
tives. In so far as objects are concerned, military objectives are limited to those objects which by
their nature, location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the circumstances ruling at the
time, offers a definite military advantage.").
87
Blurring the Line between the Jus ad Bellum and the Jus in Bello
124. See COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949, 1 1389 (Yves Sandoz, Christophe Swinarski & Bruno Zim-
mermann eds., 1987) [hereinafter COMMENTARY ON THE ADDITIONAL PROTOCOLS] ("Military
necessity means the necessity for measures which are essential to attain the goals of war, and
which are lawful in accordance with the laws and customs of war.").
1 25. As long as the use of force as a first resort comports with military necessity, it is valid in
armed conflict. See Blank & Farley, supra note 121, at 187 (citing the ability to use force as a first
resort as the primary distinction between armed conflict and law enforcement).
126. See Sean Watts, Reciprocity and the Law of War, 50 HARVARD INTERNATIONAL LAW
JOURNAL 365, 423 (2009) (discussing the authority to use force against persons and property as
an authority under the law of war, outside the scope of self-defense).
127. See Nobuo Hayashi, Requirements of Military Necessity in International Humanitarian
Law and International Criminal Law, 28 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL
39, 114 (2010) (noting that a property's "status as a military objective justifies attacks being
directed against it").
128. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES 1 1 (G.D.H. Cole
trans., J. M. Dent & Sons Ltd. 1913) (1762).
129. See Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A Re-
sponse to Four Critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation
in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 831,
904-5 (2010) ("the principle of military necessity as defined in national military manuals is ad-
dressed to governments and senior military commanders and does not intend to restrict the in-
dividual soldier's use of force against the enemy").
130. This term is used colloquially to indicate situations of armed conflict that trigger the jus
in bello.
131. See Melzer, supra note 129, at 904-5.
132. See Headquarters, Department of the Army, FM 100-5, Operations 6-15 (1993) [here-
inafter FM 100-5] ("Commanders set favorable terms for battle by synchronizing ground, air,
sea, space, and special operations capabilities to strike the enemy simultaneously throughout
his tactical and operational depths.").
133. Id. at 2-6 ("Army forces in combat seek to impose their will on the enemy.").
134. See generally id. at 8-4 (the term "overwhelming combat power" and nearly identical
terms are used twenty-two times over the course of the manual).
135. Id. ("The attack must be violent and rapid to shock the enemy and to prevent his recov-
ery as forces destroy his defense.").
136. AFP 110-31, supra note 119, at 1-5-1-6 (The U.S. Air Force defines military necessity as
the "principle which justifies measures of regulated force not forbidden by international law
which are indispensable for securing the prompt submission of the enemy, with the least possi-
ble expenditures of economic and human resources.").
137. FM 100-5, supra note 132, at 2-4 ("Mass the effects of overwhelming combat power at
the decisive place and time. Synchronizing all the elements of combat power where they will
have decisive effect on an enemy force in a short period of time is to achieve mass.").
138. See Sloane, supra note 1 1, at 84 (stating ad bellum necessity allows for only the use of
force necessary to rebut a current and immediate threat).
139. Id.
140. Michael N. Schmitt, The Resort to Force in International Law: Reflections on Positivist
and Contextual Approaches, 37 AIR FORCE LAW REVIEW 105, 1 16 (1994) ("Jus ad bellum neces-
sity queries whether force was necessary at all.").
88
Geoffrey 5. Corn
141. Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International
Law Prohibit the Use of Nuclear Weapons in All Circumstances?, 20 FORDHAM INTERNATIONAL
LAW JOURNAL 181, 239 (1996) (discussing how the amount of force that should be used in a
conflict is determined by balancing military necessity and humanitarian concerns and by con-
sidering if the goal of harming the enemy can be achieved by causing less suffering).
142. See Sloane, supra note 1 1, at 52-53 (discussing both ad helium and in hello proportion-
ality) and at 67 ("Any use of force must be necessary and proportional relative to both the jus
ad bellum and the jus in bello.").
143. Id. at 73 (discussing proportionality's "distinct ad helium and in hello components").
144. Just War Theory, INTERNET ENCYCLOPEDIA OF PHILOSOPHY, http://www.iep.utm.edu/
justwar/#H2 (last visited Oct. 10, 2011); see also Taft, supra note 19, at 305 ("[P]roper assess-
ment of . . . proportionality . . . require [s] looking not only at the immediately preceding armed
attack, but also at whether it was part of an ongoing series of attacks, what steps were already
taken to deter future attacks, and what force could reasonably be judged to be needed to suc-
cessfully deter future attacks.").
145. Taft, supra note 19, at 303 ("[I]t is generally understood that the defending State's ac-
tions must be both 'necessary' and 'proportional.'"). See also CHRISTINE GRAY, INTER-
NATIONAL LAW AND THE USE OF FORCE 150 (3d ed. 2008) ("It is not clear how far the two
concepts can operate separately. If a use of force is not necessary, it cannot be proportionate
and, if it is not proportionate, it is difficult to see how it can be necessary.").
146. Wayne R. LaFave & Austin W. Scott Jr., 2 Substantive Criminal Law § 10.4 (2d
ed. 1986) (self-defense justifies only the use of force that is reasonably related to the harm the
actor is seeking to avoid).
147. YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 217 (1988).
148. Id.
149. Id.
150. See AP I, supra note 85, art. 51. See also YORAM DINSTEIN, THE CONDUCT OF HOSTILI-
TIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 1 19-25 (2004).
151. See AP I, supra note 85, art. 52(2). See also Blank & Farley, supra note 121. Some con-
temporary scholarship asserts that an implicit proportionality restriction applies to attacks
against enemy belligerents as an aspect of the general principle of humanity — an interpretation
of the jus in bello attenuated from operational logic and one I have addressed previously. See
Geoffrey S. Corn, Mixing Apples and Hand Grenades: The Logical Limit of Applying Human
Rights Norms to Armed Conflict, 1 JOURNAL OF INTERNATIONAL HUMANITARIAN LEGAL
Studies 30 (2010).
152. API, swpranote85, art. 51.
153. Definition of Excessive, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/
excessive (last visited Oct. 10, 2011) ("exceeding what is usual, proper, necessary, or normal");
Definition of Disproportionate, MERRIAM- WEBSTER, http://www.merriam-webster.com/dictionary/
disproportionate (last visited Oct. 10, 2011) ("being out of proportion"). See also COMMEN-
TARY ON THE ADDITIONAL PROTOCOLS, supra note 124, If 1979.
154. See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 171-76
(1990) (discussing the use of "excessive" in AP I).
155. AP I, supra note 85, art. 57. See also COMMENTARY ON THE ADDITIONAL PROTOCOLS,
supra note 124, Tflj 2204-15 (commentary on Additional Protocol I, Article 57(2)(a)(iii)).
156. Geoffrey S. Corn & Gary P. Corn, The Law of Operational Targeting: Viewing the
LOAC Through an Operational Lens, 47 TEXAS INTERNATIONAL LAW JOURNAL 337, 365 (2012)
("When a commander launches such an attack with awareness that the unintended harm to
89
Blurring the Line between the Jus ad Bellum and the Jus in Bello
civilians will be excessive in relation to the benefit of creating the risk (achieving the military
objective), the law essentially imputes to the commander the intent to engage in an indiscrimi-
nate attack.").
157. Corn, supra note 151, at 37; see also Jerrett W. Dunlap Jr., The Economic Efficiency of t lie
Army's Maneuver Damage Claims Program, 190/191 MILITARY LAW REVIEW 1, 37 (2006/2007)
(discussing training events and the ways in which commanders prepare to accomplish their
mission when deployed).
158. Corn & Corn, supra note 156, at 362 ("it is clear that the law recognizes that the desired
effect of an attack need not be total destruction [;] . . . [f]or example, a doctrinal mission em-
ploying indirect fire assets serves the purpose of not only target destruction, but also disrup-
tion, harassment, and degradation").
159. Chairman, Joint Chiefs of Staff, JP 3-60, Joint Targeting 1-8 (2007), available at http://
www.bits.de/NRANEU/others/jp-doctrine/jp3_60(07).pdf.
160. While the Oil Platforms decision, supra note 19, by the International Court of Justice
(ICJ) calls this "macro" assessment perspective into question, it is this aspect of the decision
that has triggered the most criticism. See Taft, supra note 19, at 302-3. The ICJ's application of
international law moves away from widespread, accepted understanding of self-defense target-
ing. Id. Generally, so long as the actions of one State affect another State, self-defense is war-
ranted. Id. Whether the inciting State acted indiscriminately is irrelevant. Id. See also Ruth
Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self- Defense,
99 AMERICAN JOURNAL OF INTERNATIONAL LAW 52, 57 (2005) (addressing the "questionable
logic" applied by the ICJ in Oil Platforms regarding self-defense).
161. Australia, Belgium, Canada, France, Germany, Italy, the Netherlands, New Zealand,
Spain and the United Kingdom all included an understanding in their ratification to AP I that
the "military advantage" referenced in Articles 51 and 57 is to be considered as a whole and not
examined on an individual attack basis. Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Pro-
tocol I), 8 June 1977, INTERNATIONAL COMMITTEE OF THE RED CROSS, http://www.icrc.org/
ihl.nsf/WebSign?ReadForm&id=470&ps=P (then follow date of Reservation hyperlink for each
country) (last visited Oct. 10, 201 1 ).
162. See Mary Ellen O'Connell, Defining Armed Conflict, 13 JOURNAL OF CONFLICT &
SECURITY LAW 393, 393-95 (2008) (asserting that the United States' armed conflict against ter-
ror is limited to Iraq and Afghanistan). See also David E. Graham, The Dual U.S. Standard for
the Treatment and Interrogation of Detainees: Unlawful and Unworkable, 48 WASHBURN LAW
JOURNAL 325, 331 (2009) (asserting terrorism and armed conflict are two separate things, gov-
erned by their own sets of laws); Rona, supra note 53, at 64-65 (stating American targeting of
terrorists in Yemen in 2002 was not part of an armed conflict between the United States and
terrorism).
163. See Paust, supra note 62, at 251-52 (supporting the United States' use of force in
self-defense outside its own territory even outside the existence of a "relevant international or
non-international armed conflict").
164. See generally Final Report on the Meaning of Armed Conflict, supra note 53, at 10-18
(adopting a definition of armed conflict that requires satisfaction of both organization and in-
tensity of hostilities elements).
165. Rona, supra note 53, at 60-65 (analyzing the traits of armed conflict and finding they
don't always apply to the war on terror); Mary Ellen O'Connell, The Legal Case Against the War
on Terror, 36 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 349, 352-57 (2004)
90
Geoffrey 5. Corn
(arguing against a global war on terror because it does not meet traditional Geneva ideas of
armed conflict).
166. See generally Corn, supra note 20; Delahunty & Yoo, supra note 20; see also Blank &
Farley, supra note 121. See generally Balendra, supra note 42 (the entire article discussing what
constitutes an armed conflict).
167. See Paust, supra note 62, at 258-60 (stating the United States does not need to be at war
with, or involved in an armed conflict with, al Qaeda to use force in self-defense, that use of
force outside the scope of an armed conflict would not be governed by ad helium principles).
168. See generally Anderson, supra note 3.
169. See generally Anderson, supra note 63.
170. See Anderson, supra note 3, at 8 ("The invocation of naked self-defense does not lower
the standards-of-care conduct in the use of force below what the uniformed military would be
required to do in a formal state of armed conflict. Rather, it merely locates them in customary
law rather than in the technical law of armed conflict.")
171. Corn 8c Jensen, supra note 12, at 56-57, 75-76; Eric T. Jensen, Applying a Sovereign
Agency Theory of the Law of Armed Conflict, 12 CHICAGO JOURNAL OF INTERNATIONAL LAW
685,692-701 (2012).
172. See generally Corn & Jensen, supra note 17. In this article, the authors address the com-
plex question of distinguishing constabulary uses of military force (for example, deployment of
armed forces in the context of a peacekeeping mission) from uses of armed force that trigger
LOAC principles. It is suggested that the nature of the use of force authority granted to the
forces to execute the mission is a key indicator of the line between armed conflict and other
uses of military force falling below that threshold. In so doing, the authors categorically reject
the suggestion that any use of armed force abroad triggers LOAC applicability. Instead, analysis
of the nature of the mission and the scope of authority employed will drive this determination.
The authors recognize this is not a talisman; however, they believe that this approach provides a
more operationally realistic method of assessing when compliance with humanitarian con-
straints is legally obligatory than the elements approach.
173. See generally Final Report on the Meaning of Armed Conflict, supra note 53.
174. See, e.g., Public Committee against Torture in Israel v. Government of Israel, HCJ 769/
02, Judgment (Dec. 13, 2006), 46 INTERNATIONAL LEGAL MATERIALS 373 (2007), available at
http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. In this case, which con-
cerned the legality of targeted killings, the Israel High Court of Justice ultimately decided that it
cannot be determined in advance that every targeted killing is prohibited according to custom-
ary international law, but it also cannot be determined in advance that every targeted killing is
lawful under customary international law. Each circumstance must be examined on a case-by-
case basis.
175. Harold Hongju Koh, The Lawfulness of the U.S. Operations Against Osama bin Laden,
OPINIOjURIS(May 19, 2011), http://opiniojuris.org/2011/05/19/the-lawfulness-of-the-us
-operation-against-osama-bin-laden/ ("[B]in Laden continued to pose an imminent threat to
the United States that engaged our right to use force, a threat that materials seized during the
raid have only further documented. Under these circumstances, there is no question that he
presented a lawful target for the use of lethal force.").
176. Id.
177. Harold Hongju Koh, Legal Adviser, U.S. Department of State, Remarks at the Annual
Meeting of the American Society of International Law: The Obama Administration and Inter-
national Law (Mar. 25, 2010), http://www.state.gOv/s/l/releases/remarks/1391 19.htm.
91
Blurring the Line between the Jus ad Bellum and the Jus in Bello
178. Koh, supra note 175 ("The laws of armed conflict require acceptance of a genuine of-
fer of surrender that is clearly communicated by the surrendering party and received by the op-
posing force, under circumstances where it is feasible for the opposing force to accept that offer
of surrender. But where that is not the case, those laws authorize use of lethal force against an
enemy belligerent, under the circumstances presented here.").
1 79. Brennan, supra note 9.
180. Koh, supra note 177.
181. One possible explanation is that Koh may be hinting at a consideration generally over-
looked. The fact that the Director of Central Intelligence (and not the Commander of U.S. Spe-
cial Operations Command) directed the Bin Laden mission is one of the most interesting
aspects of the publicly disclosed information about the mission. Concerning the prior wide-
spread reference to a Central Intelligence Agency (CIA) drone operations program, see, e.g.,
David S. Cloud, CIA Drones Have a Widened Focus across Pakistan: Since 2008, the Agency Has
Been Allowed to Kill Unnamed Suspects, PITTSBURGH POST-GAZETTE, May 9, 2010, at A6. See
also Associated Press, Suspected US Drone Strike Kills 20 in Pakistani Tribal Area, Say Intel Offi-
cials, WATERLOO CHRONICLE, Jan. 17, 2010, at I; Ken Dilanian, CIA Drones Joining Fight Inside
Yemen, CHICAGO TRIBUNE, June 15, 2011, at 18. This revelation was not particularly remark-
able. However, like the drone program itself, it does raise serious questions related to the legal-
ity of employing civilian intelligence personnel to execute missions under the rubric of;'ws ad
bellum self-defense. See Mary O'Connell, To Kill or Capture Suspects in the Global War on Ter-
ror, 35 Case Western Reserve Journal of International Law 325, 327-38 (2003) (dis-
cussing the legality of CIA operatives using drones to kill suspected al Qaeda operatives in
Yemen); Dave Glazier, Playing by the Rules: Combating al Qaeda Within the Law of War, 51
WILLIAM AND MARY Law REVIEW 957, 958 (2009) (stating under certain conditions the mili-
tary — but not the CIA — can legally kill or detain suspected terrorists under the law of war);
Gary Solis, Americas Own Unlawful Combatants, WASHINGTON POST, Mar. 12, 2010, at A17
(citing the illegality of the CIA's use of drones to kill members of al Qaeda). Perhaps that "or" is
a reference to some type of legal division that exists between self-defense operations executed
by the armed forces and those executed by the CIA. Is Koh's statement part of an effort to shield
the use of CIA operatives from the "lawful belligerent" requirement of the jus in bello, and to
suggest that CIA operations, while justified pursuant to the jus ad bellum, are technically not
part of the armed conflict with al Qaeda?
If this is the genesis of Koh's "or," it should be explicitly acknowledged and he should articu-
late the legal theory for the use of deadly force outside the context of armed conflict. The relative
merits of such a theory are well beyond the scope of this essay. However, it is interesting to con-
sider how the U.S. view of war crimes liability for unprivileged belligerents may be influencing
this apparent attempt to preserve some jus ad bellum targeting carved out from jus in bello appli-
cability. It is well known that one of the most contentious offenses in the Military Commission
Act of 2006 (as amended) is murder in violation of the law of war. See 10 U.S.C. § 950(t)(15)
(2009) ("Murder in violation of the law of war. Any person subject to this chapter who intention-
ally kills one or more persons, including privileged belligerents, in violation of the law of war
shall be punished by death or such other punishment as a military commission under this chap-
ter may direct.").
92
V
War and Peace: Where Is the Divide?
Charles Garraway 5
Regarding the rules of warfare, whether we think of Hugo Grotius (De Jure
Belli ac Pacis), 1 Oppenheim (International Law: A Treatise) 1 or Tolstoy
(War and Peace)? we look back at an earlier age. A hundred years ago, there was
war and there was peace. Each was clearly identifiable and subject to its own rules.
To codify one area, in 1907, the Hague Peace Conference agreed upon a Conven-
tion on the Opening of Hostilities (Hague Convention III). 4 For centuries, there
had been customary rules dealing with armistices, capitulation, surrender and the
restoration of peace. The laws of war were applicable in the period between the
opening of hostilities and the restoration of peace.
The middle of the twentieth century began to place this system under strain.
States had sought to avoid the application of the laws of war by denying that hostili-
ties amounted to a "war" within the legal definition. The Geneva Conventions of
19495 attempted to resolve this problem by changing the application threshold
from "war," with its legal technicalities, to "armed conflict," a factual assessment.
The spotlight turned from the initial threshold to a new problem. Whereas "war"
had always been looked upon as the use of force between States, the nature of
armed conflict was different. No longer did States hold a monopoly of violence.
The end of colonialism and the Cold War led to war by proxy, often fought be-
tween armed groups within a State fighting for control of that State. Sometimes,
* Associate Fellow at Chatham House on the International Security Programme and a Fellow of
the Human Rights Centre, University of Essex.
War and Peace: Where Is the Divide?
one group represented the recognized government fighting an insurgency; in other
cases, the fight was between groups and each might have recognition from States
on different sides of the ideological divide. The laws of war, or as they were now
known, the laws of armed conflict, were still primarily a matter of treaty law, appli-
cable only to wars between States, now called international armed conflicts. Only
limited provisions applied to these new internal armed conflicts, now referred to as
non-international armed conflicts. The key issues became, on the one hand, defining
the distinction between international and non-international armed conflict and, on
the other hand, working on extending the rules applicable to non-international
armed conflict.
However, in recent years, the initial threshold of armed conflict has again be-
come relevant. This has been caused to some extent by the success of those who
have sought, for humanitarian reasons, to merge the rules relating to international
and non-international armed conflict, but also by politicians, who have sought to
take advantage of the greater freedom of action normally granted to States in time
of war by seeking to apply the laws of war in areas beyond their traditional field.
The tensions have led to a debate that has suffered from a seeming inability by dif-
ferent sides to understand where others are coming from. It has become multifac-
eted and in some cases issues have been lost in confusion over vocabulary. This
article will seek to look at how the problems have arisen and whether there is still
room for a comprehensive approach that will accommodate to some extent all the
competing factions.
In order to find a solution, it is first necessary to identify the problem and how it
has arisen. As it has arisen from two separate confrontations, this is more compli-
cated than usual; however, the attempt must be made. First, let us look at the legal
arguments that have led to the increasing merger of the law relating to interna-
tional and non-international armed conflict.
As we have seen, this first arose as an issue after the Second World War. Until
that time, the use of violence was seen as the monopoly of States. Similarly, interna-
tional law involved States and not, for the most part, private individuals. The laws
of war therefore dealt with wars between States and what went on within the
boundaries of a State was for that State alone and not a matter for the international
community. This is to some extent reflected even in the United Nations Charter,
where Article 2(7) states:
Nothing contained in the present Charter shall authorize the United Nations to inter-
vene in matters which are essentially within the domestic jurisdiction of any State or
shall require the Members to submit such matters to settlement under the present
94
Charles Garraway
Charter; but this principle shall not prejudice the application of enforcement measures
under Chapter VII. 6
Sovereignty continued to rule but the first chink in the impregnability of the State
sovereignty doctrine could be seen here. Even sovereignty could not act as a shield
against action by the Security Council, acting on behalf of the international com-
munity, when using its powers under Chapter VII of the Charter.
The lessons of the Second World War had shown quite clearly that States could
no longer, if they ever could, be trusted entirely to protect their own citizens. The
Holocaust was the ultimate betrayal of the duty to protect. While Article 2(7) cre-
ated a small opportunity for intervention, lawyers were also working to see if the
laws protecting peoples could also be strengthened. This work was in two strands.
On the one hand, the International Committee of the Red Cross (ICRC), working
on revisions of the law protecting victims of war, saw the need to extend that pro-
tection down into non-international armed conflicts. At the same time, the United
Nations, reluctant as an organization pledged to the abolition of war to involve it-
self in revision of the laws of war, sought to develop a new branch of international
law designed to protect the individual from the powers of the State. Thus human
rights law, conceived in the cauldron of two world wars, was developed separately
from the laws of war and seen, in essence, as part of the law of peace. It is the sepa-
rate but contemporaneous development of these two powerful branches of inter-
national law that has contributed both to the increased legal protection available to
individual victims of armed conflict, and also to a growing overlap between the
laws of war and the laws of peace. That overlap has, for the most part, been mutu-
ally beneficial, but as the laws of war and human rights law have expanded into
each other's "territory," tensions have occurred. These tensions may not be imme-
diately apparent and indeed for many years have lain comparatively unexposed,
but recent political events, particularly "9/11" and the subsequent "war on terror,"
have exposed these tensions to view. Some still refuse to accept that the tensions ex-
ist, but I would suggest that if we are to bring these two branches into coexistence,
then the tensions must be faced and dealt with.
First we need to see how the tensions have developed.
The ICRC had already been seeking to strengthen the laws relating to victims of
armed conflict prior to the Second World War. As a result, it was well placed to
make progress in developing "Geneva" law and gained the international commu-
nity's agreement to the four Geneva Conventions of 1949. 7 These are often seen as
the bedrock of modern international humanitarian law, but, again, they ap-
proached matters essentially from the viewpoint of the protection of victims. How-
ever, the ICRC failed in one of its major objectives. The ICRC had recognized that
95
War and Peace: Where Is the Divide?
the nature of warfare was changing and that States no longer had a monopoly on
the use of force. As a result, in 1949 it had initially sought to apply the full weight of
"Geneva" law, as embodied in the four 1949 Conventions, to non-international
armed conflict. The ICRC failed. States were not prepared to go that far in allowing
international supervision of their internal affairs. The result was that only one article,
common to all four of the 1949 Conventions, was applied to non-international
armed conflict. Significantly, the wording of Common Article 3, 8 as it is called, is
very similar to the wording used in human rights law. However, the law relating to
the conduct of hostilities remained frozen in the form that it had adopted in 1907
in the Regulations Respecting the Laws and Customs of War on Land, annexed to
Hague Convention IV. 9 The Regulations had, however, been strengthened by the
pronouncement of the Nuremberg Tribunal that they now reflected customary in-
ternational law and were thus binding on all States. 10
At the same time, the United Nations was drafting and promulgating the 1948
Universal Declaration of Human Rights. 11 Human rights law, however, initially
developed slowly. The two international covenants on economic, social and cul-
tural rights 12 and civil and political rights 13 were not adopted until 1966. In the
meantime, Europe had adopted its own Convention for the Protection of Human
Rights in 1950, which came into force in 1953. 14 Where this Convention was par-
ticularly significant was that it had a judicial enforcement mechanism in the form
of the European Court of Human Rights (ECtHR), a Court that has increasingly
taken a proactive line in terms of interpreting and enforcing the European
Convention.
Although the Universal Declaration was seen as part of the law of peace, the Eu-
ropean Convention's terms provided for its continued applicability in times of
war. Its derogation clause specifically referred to "war or other public emergency
threatening the life of the nation." 15 It was difficult, therefore, to argue that human
rights played no part in governing conduct in time of war, at least for European
States. Nevertheless, it was generally accepted that in time of "war" — armed conflict
between States — it was the laws of war that took priority. The position was less clear
in non-international armed conflict, where the law of armed conflict was still only in
rudimentary form. While Common Article 3 clearly applied to non-international
armed conflict, the application of "Hague" law on the conduct of hostilities was
much more problematic. The Hague treaties almost exclusively dealt only with
international armed conflict between States and few, if any, commentators were
prepared to argue that as a matter of custom, such law extended into non-
international armed conflict. States still considered that sovereignty was an over-
riding consideration and they were not prepared to allow international law to
96
Charles Garraway
govern how they conducted operations against rebel forces on their own territo-
ries. But human rights law was already beginning to do just that.
In 1974, the ICRC again attempted to extend the ambit of the law of armed con-
flict. It prepared two draft protocols for consideration by States. There were two
notable features to these drafts. First, the text was clearly heavily influenced by human
rights law. Second, the text not only dealt with "Geneva" law, the traditional area in
which the ICRC had operated, but also contained substantial elements of "Hague"
law dealing with the conduct of hostilities. The two draft protocols dealt respec-
tively with international armed conflict and non-international armed conflict.
These drafts were considered by a diplomatic conference convened by the Swiss
government between 1974 and 1977 before two texts were adopted in June 1977. 16
The original draft texts had again sought to bring together the law relating to the
two distinct types of conflict, but at the last minute the text of Additional Protocol
II relating to non-international armed conflict was substantially trimmed. States
again were cautious about allowing too much international control over internal
matters. What remained was almost entirely "Geneva" law, expanding the minimal
provisions contained in Common Article 3. Furthermore, although Common Ar-
ticle 3 had no "threshold of violence" and thus applied to any "armed conflict not
of an international character occurring in the territory of one of the High Contract-
ing Parties," 17 Additional Protocol II had a much higher threshold, applying only
to non-international armed conflicts taking place
in the territory of a High Contracting Party between its armed forces and dissident
armed forces or other organised armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol. 18
Thus "Hague" law still was seen as having a minimal impact on non-international
armed conflicts.
All this was to change in the 1990s. The conflicts caused by the breakup of the
Socialist Federal Republic of Yugoslavia were both bitter and complex. Neighbor
was pitted against neighbor and it was often difficult to assess the legal context in
which atrocities were being committed. The United Nations Security Council
established the International Criminal Tribunal for the former Yugoslavia and
passed the problem from the political to the judicial arena. 19
The Yugoslav Tribunal found itself in something of a quandary. The character-
ization of the conflicts in the former Yugoslavia was not without considerable
doubt. Were they international, that is, between the new States, or internal, be-
tween ethnic groups within the new States? Indeed, did the nature of the conflicts
97
War and Peace: Where Is the Divide?
change at various points and, if so, when? The rules on the conduct of international
hostilities were comparatively clear following the adoption in 1977 of Additional
Protocol I to the 1 949 Geneva Conventions. 20 Although this treaty did not have the
universal acceptance of the Geneva Conventions themselves, its key provisions, in-
cluding proportionality and precautions in attack, were accepted as custom even
by those States who, as a result of objections to other provisions, had not ratified it.
But what was the situation in non-international armed conflict? In the early 1990s,
even the ICRC had considered that the concept of war crimes in non-international
armed conflict did not exist, 21 those being matters within the jurisdiction of the do-
mestic courts as crimes under the States' domestic laws. While this orthodoxy had
been turned on its head by the establishment of the International Criminal Tribu-
nal for Rwanda, 22 Rwanda quite clearly being a non-international armed conflict,
there remained doubts as to how far the law could extend. As we have seen, treaty
law in relation to non-international armed conflict was almost entirely based on
"Geneva" law concepts. But here we had conflicts fought with a ferocity that cer-
tainly equated to that found in international armed conflicts. To what extent were
the participants bound by "Hague" law on the conduct of hostilities?
The Yugoslav Tribunal met this challenge head-on in its first case, that oiDusko
TadicP While the Tribunal was not prepared to go as far as some wanted and de-
clare a total assimilation of the law in international and non-international armed
conflicts, it stated that "a number of rules and principles . . . have gradually been ex-
tended to apply to internal conflicts." However, it put down an important caveat
that "this extension has not taken place in the form of a full and mechanical trans-
plant of those rules to internal conflict; rather, the general essence of those rules,
and not the detailed regulation they may contain, has become applicable to inter-
nal conflicts." 24 While the judgment itself may have been understandably cautious,
it opened Pandora's box. Within a very short period, the caveat seemed to have
been forgotten.
In 1998, the Statute of the International Criminal Court followed the Tadic de-
cision by transposing some of the war crimes applicable in international armed
conflict into non-international armed conflict. 25 While most were still of the
"Geneva" law type, some were clearly "Hague" law, including pillage and direct-
ing attacks against protected persons and objects. The Secretary-General's
Bulletin on observance by United Nations forces of international humanitarian
law of 6 August 1999 26 drew no distinction between international and non-
international armed conflict and the seminal ICRC study Customary International
Humanitarian Law, 27 while identifying 161 "Rules" of customary international
humanitarian law, found that no fewer than 147 applied across the board in both
international and non-international armed conflicts. 28 Furthermore, the study
98
Charles Garraway
drew no distinction between high-intensity non-international armed conflicts,
those covered by Additional Protocol II, and those of a lower intensity, subject in
treaty law only to the provisions of Common Article 3. The clear conclusion was
that, subject to those areas where there were obvious distinctions (e.g., status of
prisoners of war), the rules, particularly those relating to the conduct of hostili-
ties, were the same. The unwillingness of States to accept such conclusions in
1949 or more recently in 1977 was thus overcome by a combination of judicial
activism and interpretation of customary law.
But if the conduct of hostilities in non-international armed conflicts is now gov-
erned by the rules of international humanitarian law, where does that leave human
rights law? Under international humanitarian law, it is recognized that in war peo-
ple die and things get broken. Even a degree of innocent death is acceptable if it is
counterbalanced by military advantage. This would seem to fly in the face of human
rights law with its more hardened attitude based on the rights of the victim. As in-
ternational humanitarian law sought wider applicability in non-international
armed conflict, it was inevitable that it would collide with human rights law as that
too sought to protect the victims of conflicts of all types.
While other bodies have also played a part, the ECtHR has been at the forefront
of this confrontation. Cases were referred to the Court arising out of the "Trou-
bles" in Northern Ireland and, as the United Kingdom never acknowledged that
these ever reached the level of an "armed conflict," it was no surprise that the Court
dealt with the cases purely on the basis of human rights law with no reference to in-
ternational humanitarian law. 29 Slightly more problematic were cases arising out
of the Kurdish insurgency in eastern Turkey. Again, the Court dealt with these en-
tirely on the basis of human rights law, seemingly reluctant even to acknowledge
any application of international humanitarian law. 30 The Court was also called
upon in cases arising from the Turkish invasion of Cyprus in 1974 and the subse-
quent occupation, an international armed conflict. The signs of a disagreement
between the two bodies of law were apparent when the Court was asked to deal
with issues arising from the detention of prisoners of war. These cases were also
dealt with solely on the basis of human rights law. 31 In the light of Article 5 of the
European Convention for the Protection of Human Rights, which, unlike the In-
ternational Covenant on Civil and Political Rights, contains an exclusive list of the
grounds for deprivation of liberty, 32 it is hard to see how the detention of prisoners
of war can be lawful under the European Convention unless a State derogates from
the Convention. No State has sought to do so in relation to an armed conflict out-
side its own territory.
Insofar as the conduct of hostilities is concerned, the Court first became in-
volved in the Bankovic case, 33 involving the bombing by NATO forces of a Serbian
99
War and Peace: Where Is the Divide?
television station during the Kosovo air campaign, again an international armed
conflict The case was brought by some of those injured in the attack and by fami-
lies of those killed. Had the Court reached a decision on the merits, a number of
crucial questions involving international humanitarian law would seemingly have
become relevant. Was the TV station a military objective? If so, how should the an-
ticipated military advantage be assessed and what was the expected incidental loss
or damage? How is this balance to be calculated? How does all of this fit with the
right to life under human rights law? There was no derogation under Article 15 of
the Convention 34 and so to what extent could the Court take into account
international humanitarian law at all? Should the Court deal with the matter
solely as a human rights issue without any reference to international humanitarian
law? Much to the relief of many, but the chagrin of some academics, the Court de-
cided on a preliminary issue that the victims of such an air attack did not fall within
the "jurisdiction" of the Court.
However, this was not the end of the matter. This was an international armed
conflict and it was clear that NATO had no control over the ground. Furthermore,
the territory involved, Serbia, was not within the "espace juridique" of the Euro-
pean Convention. The armed conflict in Chechnya provided a different scenario, a
non-international armed conflict on the territory of a State party to the Conven-
tion. Here the jurisdictional arguments that had prevented the Court from adjudi-
cating the Bankovic case did not apply. The Court therefore had to bite the bullet.
This conflict involved both land and air operations and it was not long before a case
involving the conduct of hostilities came before the Court.
The case involved the bombing from the air of what turned out to be a civilian
convoy of vehicles fleeing Grozny. 35 It hinged therefore, in international humani-
tarian law terms, on the issue of precautions in attack. The Court, however, dealt
with it entirely in human rights terms, although international humanitarian law
had been discussed in arguments before the Court. As it happens, the facts were
such that the same result would probably have been reached under either system of
law and the Court used language very similar to that contained in international hu-
manitarian law, particularly Additional Protocol I. However, the Court, on the
facts, was able to evade some of the key issues, including that of proportionality.
Had the convoy turned out to be a military objective, perhaps because of a number
of military vehicles embedded in the convoy, would the issue of proportionality
have been dealt with differently under human rights law and the right to life rather
than under humanitarian law, where a certain measure of incidental loss and dam-
age is acceptable? The tectonic plates were beginning to rub together.
The legal uncertainty has been accompanied by political events to create "the
perfect storm." When the British Prime Minister Harold Macmillan was once asked
100
Charles Garraway
what he feared most, he is alleged to have replied, "Events, dear boy, events." 36 The
9/11 attacks were certainly such an event. Prior to that date, terrorism was, of
course, already a recognized phenomenon; however, it was considered to be on the
"peace" side of the line and to be a matter for law enforcement authorities. The se-
ries of United Nations conventions on terrorism drafted during the 1970s, '80s
and '90s in response largely to acts carried out by Palestinian groups concentrated
on international criminal law cooperation. 37 It was acknowledged that terrorism
could take place within armed conflict and "acts of terrorism" were specifically
prohibited under Additional Protocol II. 38 States, for the most part, sought to dif-
ferentiate between "terrorism" and armed conflict. On the one hand, Arab groups
refused to acknowledge that acts carried out by Palestinian factions were "acts of
terrorism" at all, but rather insisted they were legitimate acts of resistance. 39 Con-
versely, the United Kingdom consistently refused to accept that the campaign by
the Irish Republican Army (IRA) and other Republican factions in Northern Ire-
land amounted to armed conflict. Even the deployment of large numbers of Brit-
ish military forces did not change that position. They were deployed in the capacity
of military aid to the civil power, 40 were subject to civilian control and were at all
times subject to domestic law. Thus, insofar as the use of force was concerned, they
operated in a law enforcement paradigm, not in an armed conflict one. This led to
soldiers being investigated for — and even charged with — murder where, under an
armed conflict paradigm, their use of force might have been entirely justified. 41
The United Kingdom, when ratifying Additional Protocol I in 1998, made a spe-
cific statement of understanding in the following terms: "It is the understanding of
the United Kingdom that the term 'armed conflict' of itself and in its context de-
notes a situation of a kind which is not constituted by the commission of ordinary
crimes including acts of terrorism whether concerted or in isolation." 42
It should be pointed out that the United States seems to have adopted a similar
position. As late as April 17, 2000, Madeleine Albright, then Secretary of State, said
in a speech to the University of World Economy and Diplomacy at Tashkent in
Uzbekistan:
Terrorism is a criminal act and should be treated accordingly — and that means apply-
ing the law fairly and consistently. We have found, through experience around the
world, that the best way to defeat terrorist threats is to increase law enforcement capa-
bilities while at the same time promoting democracy and human rights. 43
The events of 9/1 1 were to change all that. While the world accepted that the attacks
of that day on the Twin Towers and the Pentagon amounted to an "armed attack" suf-
ficient to bring Article 51 of the UN Charter into play, 44 the legal categorization of
101
War and Peace: Where Is the Divide?
what happened next was highly controversial. Most accepted that the subsequent
attacks on Taliban forces in Afghanistan amounted to an international armed con-
flict between members of the coalition, most prominently the United States, and
Afghanistan; however, that was where consensus seemed to stop. After much inter-
nal argument, 45 President Bush decided that there were two separate armed conflicts,
one against the Taliban in Afghanistan to which the laws of war applied and an-
other against Al Qaeda, the latter creating a "new paradigm" outside the existing
laws of war. 46 The "war on terror" had begun.
I am well aware that the phraseology has now changed. The U.S. administration
appears now to have abandoned the concept of a "war on terror" under pressure
from the Supreme Court, but the consequences of that initial categorization live
with us still. Although the "war" is now stated to be an "overseas contingency oper-
ation" against Al Qaeda and affiliated terrorist groups, to some extent nothing has
changed. "Al Qaeda and affiliated forces" is a phrase that is remarkably difficult to
define to any degree of certainty. Al Qaeda itself has become like a chameleon,
changing its shape as circumstances change. It would seem that almost any terrorist
group whose aim is to destroy or damage the United States could be brought within
the definition on the basis that "my enemy's friend is my enemy." While the cur-
rent administration does not like it to be stated as bluntly, the United States seems
to reserve the right to apply the laws of war to operations against "terrorists" — as
defined by the United States — anywhere in the world. The argument is that this is
self-defense and the right would only be exercised where the territorial State is un-
willing or unable to take action itself. This has applied in both Yemen and Pakistan,
though certainly in the case of the former there may have been a degree of consent
from the local authorities. It is perhaps ironic that when Israel sought to exercise a
similar right in the Entebbe raid, this was condemned by the international commu-
nity and even by the Secretary-General of the United Nations. 47
There is no doubt, as we have already seen, that terrorism can take place in
armed conflict. What we are now seeing, however, is an increasing tendency to label
all dissidents as "terrorists" and, as such, "unlawful combatants" in order to take
advantage of the looser controls on the use of force under the laws of armed con-
flict. Furthermore, the increasing restrictions imposed by human rights law on the
right to detain and try individuals under the law enforcement paradigm have in-
creased the temptation to rely on emergency detention provisions, allegedly based
on the laws of armed conflict. As we have also seen, the United States appears to as-
sert that in this area at least, the laws of armed conflict displace human rights law so
that human rights bodies and even domestic courts have little or no influence. 48
Faced with this dichotomy, intensive efforts have been made to justify the ac-
tions of the two successive administrations. One is reminded of the old Irish story
102
Charles Garraway
where the lost traveler seeking directions to Mullingar was advised, "If I was you,
sir, I would not start from here!" An admission that the original decision, to declare
a "war on terror" and invoke the laws of armed conflict as the authority for acts by
the President in his capacity as Commander in Chief, was wrong would have incalcu-
lable consequences. It could lay the United States open to lawsuits from hundreds, if
not thousands, of "victims." It could also have political consequences that would
go beyond the issue of terrorism. An attempt, therefore, has been made to alter the
direction of travel without making any concessions on the Tightness or wrongness
of the original course (though comments may be made as to its advisability). In
some ways, it is like trying to turn around a supertanker — it cannot simply be
thrust into reverse.
Lawyers and scholars in the United States have approached this problem from
different angles. Some have castigated the successive administrations for riding
roughshod over legal traditions and have effectively demanded that the ship be
slammed into reverse. 49 While, in an ideal world, this might be advisable, it is prob-
ably impracticable in the political sense. Others have backed the extreme line taken
in the early days and see any withdrawal from the original position as a weakening
of U.S. resolve and as a triumph for the powers of evil. 50 This does not help the po-
sition of the United States in the rest of the world.
A third school is made up of what I will call "the pragmatists." Here are people
who recognize the underlying principles of law and are keen to present the United
States as a country steeped in the legal tradition and merely seeking to respond to
new circumstances within the existing framework of international law. As such,
they seek to find innovative ways of justifying U.S. positions without undermining
international law as it is understood and accepted by the rest of the world. Exam-
ples of this particular school can be found in some of the pronouncements of the
Supreme Court, anxious not to appear to impinge upon the President's authority
under the separation of powers. The clearest of these is that in Hamdan where the
Court found that persons held in detention were, at least, subject to the protections
given under Common Article 3. 51 This was immediately seized upon by many as a
statement by the Court that the "war against Al Qaeda" was a non-international
armed conflict. 52 However, with respect, the Court did not answer the fundamen-
tal question — whether there was a "war" at all. The Court felt that this fell within
the jurisdiction of others to decide and, therefore, for the purposes of its ruling, it
accepted that there was such a "war." Others in this volume will deal in greater
depth with this and other Supreme Court decisions. 53
I also place within this school the writings of Professor Geoffrey Corn, also fea-
tured in this volume. 54 Professor Corn has long argued most eloquently for a new
category of conflict, "transnational armed conflicts," to reflect the nature of a
103
War and Peace: Where Is the Divide?
conflict against a non-State actor with global operations and reach. 55 In one way he
is right in that few non-international armed conflicts have been confined opera-
tionally within the borders of a single State. Most have had a transnational element,
even if only by dissidents using a porous border to seek protection. In most of these
cases, however, a distinction has been drawn between operations within the terri-
tory of the State involved in the non-international armed conflict and those out-
side. Nobody, for example, among those who argued that Northern Ireland was a
non-international armed conflict would have alleged that this gave the United
Kingdom the right to strike targets in Boston where IRA leaders were regular
speakers at fund-raising rallies, or even in Libya, from where much of the Semtex
used by the IRA came and which was a major player in both training and funding.
Professor Corn seems to argue that once military forces are used, it should be
the laws of war that apply. This is, of course, in line with accepted Department of
Defense policy, 56 but I would suggest is based on a somewhat U.S. -centric view of
the use of military force cultured to a considerable extent by the Posse Comitatus
Act. 57 Other jurisdictions do not have the same restrictions on the use of military
force for domestic law enforcement purposes. As already stated, the United King-
dom for decades relied upon military forces to support the Royal Ulster Constabu-
lary in Northern Ireland, relying completely on a law enforcement paradigm. 58
Although it must be admitted that, to a certain extent, this was a political decision,
it does not take away from the fact that the UK armed forces were perfectly capable
of acting within the constraints of a law enforcement mode. Indeed, it could be ar-
gued that the refusal by the UK government to "escalate" the conflict eventually led
to the decision by the IRA leadership to enter into the political arena and seek to
obtain its political aims through the ballot box rather than the bullet.
Perhaps a more striking example of this ability of UK armed forces to operate in
a law enforcement paradigm can be found in the Iranian Embassy siege of 1980. 59
Terrorists seized the Iranian Embassy in London and took a large number of hos-
tages, including Iranian and British staff. Negotiations with the terrorists were con-
ducted by the Metropolitan Police as the lead agency, but a squadron of Special Air
Service (SAS) soldiers was put on immediate standby and deployed to London.
Once negotiations broke down and a hostage was killed, the SAS soldiers stormed
the building, killing five terrorists, capturing one and rescuing all the surviving
hostages. In some ways, this is comparable to the attack on the Bin Laden
compound.
Despite the intensity of the siege operation, this was treated throughout as a law
enforcement operation. There was an inquest into the deaths of each of those
killed — hostages and terrorists alike — and the surviving terrorist was tried (and
duly convicted) at the Central Criminal Court in London ("The Old Bailey").
104
Charles Garraway
While the deaths of the hostages were clearly unlawful killing, each of the deaths of
the terrorists had to be justified under a law enforcement paradigm. It was not suf-
ficient to say, "I saw this guy and I shot him!" The inquest was held in public, but it
was hardly difficult in the circumstances to satisfy the coroner that these deaths
were lawful. The soldiers involved did not hesitate to fire when appropriate, but at
the same time were perfectly capable of restraint when appropriate as well. This
controlled use of lethal force is an essential part of training and, even in a situation
governed by the laws of armed conflict, would be necessary to reduce the risk of
collateral damage. I would therefore challenge those who maintain that the use of
military force must inevitably require the application of the laws of armed conflict.
Indeed, it could be argued that the use of restrained force, as under the law enforce-
ment paradigm, may be more appropriate in some armed conflict situations where
it is difficult to distinguish between fighters and civilians not taking a direct part in
hostilities.
I would also note here the attempts by government lawyers, under both the
Bush and Obama administrations, to find legal justifications for U.S. actions. It is
not the case, despite the views of some right-wing commentators, that the United
States does not consider itself bound by international law, or, as John Bolton, the
former U.S. ambassador to the United Nations, would see it, there is no law supe-
rior to the U.S. Constitution. 60 Successive administrations, while accepting the in-
adequacies of international law in some respects, have sought to place themselves
within the framework of that law. This is particularly true of the excellent lawyers
in the State Department. Whether officially or in their private capacities, they have
sought to uphold the integrity of international law without seeking to undermine
their political masters.
Again an example is to be found with the arguments of Karl Chang on new uses
of the principle of neutrality. 61 While there maybe disagreement with his attempts
to introduce the concept of neutrality into non-international armed conflict, it is at
least an acceptance of the need to justify actions under international law. Neutral-
ity has indeed been relevant in the past in high-intensity non-international armed
conflict, but this has been linked to another doctrine, recognition of belligerency,
which traditionally has internationalized a non-international armed conflict,
introducing the legal regime applicable to international armed conflict. This doc-
trine too appears to be making a comeback in some circles after decades in the legal
wilderness. 62
The danger of all this debate is that developments in international law will be
seen to be being driven by the domestic law requirements of a single State. How-
ever powerful that State may be, international law remains the "law of nations" —
105
War and Peace: Where Is the Divide?
plural — and while it is inevitable that some States will be more influential than oth-
ers, one State alone should not be in a position to set the rules for all.
The confusion on the borders between law enforcement and armed conflict can
be seen clearly in the events of the Arab Spring in 201 1. The first two major States
affected were Egypt and Tunisia. In both cases, mass demonstrations toppled the
regime in power. In Egypt, the military took over the control of the demonstra-
tions from the police and, indeed, on the fall of the Mubarak regime took over
power itself. Despite the deployment of military forces and the existence of what
social scientists would undoubtedly describe as a "conflict," 63 few would argue
that the confrontations reached the level necessary to constitute an "armed con-
flict" sufficient to invoke the laws of armed conflict. The Egyptian military was
thus judged in its actions under a law enforcement paradigm.
On the other hand, Libya clearly crossed the threshold of armed conflict even
before the NATO operations conducted under the authority of UN Security
Council Resolution 1973. 64 But what of Syria and Yemen? At the time of this writ-
ing (October 201 1 ), it seems clear that Yemen is, at least, close to a state of civil war,
a non-international armed conflict. 65 In Syria also, the intensity of violence would
seem to cross the threshold, but the lack of organization of the opposition forces
may be considered to rule out the existence of an "armed conflict" due to the diffi-
culty in identifying an opposition "party" to that armed conflict. 66 Certainly, mili-
tary forces have been deployed within Syria, but does that automatically lead to an
"armed conflict" bringing into force the laws of armed conflict? I would argue that
the actions of the military forces, in such a context, will be judged under human
rights law — crimes against humanity — rather than under the laws of armed con-
flict as war crimes.
Bahrain also raises similar issues. Military forces have been deployed, including
troops from neighboring Saudi Arabia, but I would argue that the situation there
has not yet developed into an armed conflict. 67
But does this matter? Is the distinction a matter of practical importance on the
ground or is it simply another example of lawyers debating how many angels can
dance on the head of a pin? In my opinion, resolution of this issue is hugely signifi-
cant, as it illustrates the coming together of the two tectonic plates, the laws of
armed conflict and human rights law. Lawyers from each camp claim priority for
their legal regime, but can they all be right? A common tendency today is to dismiss
the argument by saying that the two systems are "complementary" and, therefore,
there is no underlying problem. 68 1 would suggest, however, that a closer examina-
tion does not support this "complementary" theory.
Insofar as "Geneva" law is concerned, it can be accepted that there is a consider-
able degree of compatibility. Both systems of law grew from the same root, a need
106
Charles Garraway
to protect those who were seen as victims. Although "Geneva" law was mainly de-
signed, in the early days, to protect combatants who were placed hors de combat and
human rights law was designed to protect civilians from the power of States, the
underlying principles are similar. While there may be differences of emphasis —
and, in places, of detail — these can be overcome and the two legal systems can sit
reasonably comfortably together.
"Hague" law on the conduct of hostilities is different in origin. It grew from the
acceptance of State entities' right to use violence. While "Hague" law sought to re-
strain that use of violence, it did not seek to prevent it and, therefore, acknowl-
edged that, in time of war, people (including civilians) will die and things will get
broken. It is here that the laws of armed conflict begin to diverge from human
rights law, which starts with the rights of the individual and limits the occasions on
which States can override those rights. The two systems therefore approach matters
from opposite ends of the philosophical spectrum.
Insofar as "Hague" law seeks to limit the conduct of States, again there is a de-
gree of compatibility with human rights law. Thus, many of the "protection" pro-
visions and weaponry restrictions sit happily alongside human rights law.
However, it is in the "authorizations" accepted by "Hague" law that the greatest
difficulty lies. For centuries it was accepted that the right to use force was an inher-
ent power of sovereignty. Those authorized by the sovereign were immune from
prosecution for acts of violence that would be criminal if committed outside the
context of war. This became known as "combatant immunity." 69 In return, such
belligerents were themselves lawful targets and could be killed without question
simply because of their status. The threat they posed was irrelevant. This customary
rule became tempered over time by custom itself, which developed the principle of
protection, which subsequently developed into "Geneva" treaty law, affording
protection to a belligerent who was rendered hors de combat, but the underlying
principle that a belligerent was a legitimate target was unchallenged.
Belligerents who were captured could be detained until the end of active hostili-
ties. 70 They were not criminals; just as it was accepted that belligerents could be
killed because of their status, so they could be detained for the same reason. Again
this was mitigated to allow for the early release of those seriously injured, 71 but the
general principle remained. Early release was the exception, not the rule.
Human rights law approaches both the use of force and detention from the op-
posite direction. Use of lethal force is prohibited except in certain specified circum-
stances. 72 Authority to use force is based on the threat posed by the individual on
whom the force is to be used. The right to life is a fundamental right and thus lethal
force is obviously a last resort. It may only be resorted to in the most extreme
107
War and Peace: Where Is the Divide?
circumstances. These provisions will be well understood by anyone engaged in law
enforcement.
Similarly, the right to liberty of the person may only be restricted in specific cir-
cumstances. 73 Again, this would be assessed on an individual basis and the assess-
ment would be based on threat. It would not include the mass detention of
prisoners of war on the basis of status.
It follows that the tests involved for both use of force and detention are funda-
mentally different under human rights law and the laws of armed conflict. Let us
take the example of Bin Laden, leaving aside for these purposes issues of the ad
helium authority for the operation being conducted in Pakistan.
It is the U.S. position that this operation was conducted as part of its ongoing
"war" against Al Qaeda, that Osama Bin Laden was a "belligerent" within that
armed conflict and therefore a legitimate target. 74 On that basis, under traditional
"Hague" rules, lethal force could be used against Bin Laden because of his status. It
was not necessary that he pose any threat to the attacking forces at the time that the
lethal force was used. Of course, the essential hors de combat rules would have applied
and, if Bin Laden had sought to surrender, then that surrender should have been
accepted. However, the burden was on Bin Laden to display a clear intention to
surrender, not on the troops themselves to inquire as to his intentions. There may
have been orders to capture Bin Laden, if possible, but this would have been a mat-
ter of operational requirements, not international law.
On the other hand, if this was a law enforcement operation conducted under
human rights law, then the primary aim of the operation would have to have been
to capture Bin Laden. Any use of force would have needed to be directly responsive
to the threats posed to the troops on the ground in the circumstances ruling at the
time. Any use of lethal force in particular would have needed to be justified specifi-
cally on the basis of the threat faced at the moment that the lethal force was used
and not simply by the fact that this was Osama Bin Laden. The burden would have
been on the troops to justify their use of force, not on Bin Laden himself.
As the example of the Iranian Embassy siege shows, the end results may be little
different. In a case where hostages have been killed and there remains a serious risk
to other hostages, as well as to the troops themselves, from well-armed terrorists
who have wired a building with explosives, little justification is needed for the
immediate use of lethal force. However, the aim of the operation is different. Put
simply, it is the difference between "kill or capture" and "capture or kill."
While on many occasions, and it may well be that the Bin Laden case is an exam-
ple, the results may be the same under either a law enforcement or armed conflict
operation, there will be others where the results may differ. An example is the
Bankovic case referred to earlier. 75 In that case, during the Kosovo air campaign,
108
Charles Garraway
NATO aircraft attacked the main television station in Belgrade, causing a number
of civilian casualties. The families of the deceased and some of the injured initiated
proceedings against the European NATO States, alleging breaches of their right to
life. As earlier stated, the case fell at the admissibility hurdle when it was ruled that
the "victims" did not fall within the jurisdiction of the European States. This meant
that the case did not reach the merits stage. Had it done so, the applicants would
have argued that the TV station was not a legitimate military objective under the
laws of armed conflict, which would have resulted in the ECtHR being faced with
the dilemma of deciding whether the loose language of Article 52(2) of Additional
Protocol I 76 is consistent with the strict standards on the use of force under human
rights law. Furthermore, even if the Court had decided that the TV station was a
military objective and therefore liable to attack, the Court might have then had to
rule on the issue of proportionality.
In cases involving the right of an individual to be free from torture and cruel or
inhumane treatment, the ECtHR has already ruled in deportation cases that a State
cannot set against the rights of the applicant the danger that the applicant poses to
national security, and thus to the rights of the wider population. 77 With this prece-
dent, it would have been interesting to see how the Court dealt with the balance be-
tween the anticipated collateral damage and the anticipated military advantage.
Nor is this a theoretical problem. Cases have been filed with the ECtHR arising
from the Russia-Georgia conflict in 2008. 78 It therefore is likely that the Court will
have to deal with these issues within the foreseeable future. To date, the Court has
shown a marked reluctance to consider the laws of armed conflict, preferring to ap-
proach matters from a human rights perspective, occasionally paying lip service to
law of armed conflict principles. This can be seen at its most extreme in the
Chechnya cases, where the Court held in one case that where there was no deroga-
tion the Court was bound to consider matters on the basis of a normal law enforce-
ment paradigm. 79 That case involved air operations, and so it seemed that the
Court was taking a purely legalistic approach, refusing to accept the actual facts on
the ground. A similar approach to the Russia-Georgia conflict would involve, at
best, the interpretation of law of conflict principles through a human rights prism
and, at worst, a claim that human rights law trumps the law of armed conflict, even
in international armed conflict.
If, as seems likely, we are heading for a clash between the competing philoso-
phies of "Hague" law and human rights law, is there any way of avoiding such a
clash while retaining the key principles of each? One way would be to seek to incor-
porate human rights standards into the laws of armed conflict. The ICRC seems to
have encouraged this approach in its Interpretive Guidance on the Notion of Direct
109
War and Peace: Where Is the Divide?
Participation in Hostilities under International Humanitarian Law. 80 In one of the
more controversial parts of this document, the ICRC states in Part IX:
In addition to the restraints imposed by international humanitarian law on specific
means and methods of warfare and without prejudice to further restrictions that may
arise under other applicable branches of international law, the kind and degree of force
which is permissible against persons not entitled to protection against direct attack
must not exceed what is actually necessary to accomplish a legitimate military purpose
in the prevailing circumstances. 81
Despite its careful wording, this has been seen as incorporating a requirement
for a graduated use of force. Indeed, it claims to be an interpretation of a statement
by Jean Pictet:
If we can put a soldier out of action by capturing him, we should not wound him; if we
can obtain the same result by wounding him, we must not kill him. If there are two
means to achieve the same military advantage, we must choose the one which causes
the lesser evil. 82
While this is entirely consistent with the underlying philosophy of "Geneva" law, it
runs counter to the recognized interpretation of "Hague" law in which belligerents
are targetable with lethal force at all times because of their status. As such, this part
of the Interpretive Guidance has been criticized by States, particularly those in-
volved in major operations, as an attempt to rewrite existing law in a manner that,
when applied to all forms of armed conflict, would be unrealistic on the ground.
Another possible way forward would depend on an acceptance that the comple-
mentary view is not the answer and that there will be circumstances where the two
legal systems conflict. In such cases, it will be necessary to decide which legal system
should have priority. This would not affect the basic principle that there is sizable
overlap, but would seek to make operational the Delphic dictum of the Interna-
tional Court of Justice, when it sought to deal with the relationship between the
two bodies of law. It stated:
As regards the relationship between international humanitarian law and human rights
law, there are thus three possible situations: some rights may be exclusively matters of
international humanitarian law; others may be exclusively matters of human rights
law; yet others may be matters of both these branches of international law. In order to
answer the question put to it, the Court will have to take into consideration both these
branches of international law, namely human rights law and, as lex specialise interna-
tional humanitarian law. 83
110
Charles Garraway
But where should the division be? It would seem clear that in international
armed conflict, priority should go to the laws of armed conflict. In cases falling
short of armed conflict, the laws of armed conflict do not apply at all and so human
rights law will govern. However, the situation is not so simple in relation to non-
international armed conflict or, within the sphere of international armed conflict,
situations of occupation. In each of these situations, as we have seen, the bound-
aries between law enforcement operations and armed conflict are blurred and dif-
ficult to define. The answer may be not to look at the technical classification of the
armed conflict but at the level of violence within it. Some non-international armed
conflicts are low-level, consisting principally of individual incidents rather than
concerted operations. To permit "Hague" law authorizations to apply to such
armed conflicts would encourage every despot to declare his internal disturbances
to be an armed conflict in order to permit wider powers of detention and use of
force. In low-level non-international armed conflicts of this nature, human rights
law should take priority when there is a conflict between human rights law and the
laws of armed conflict.
Other non-international armed conflicts are of very high intensity, equivalent
to that of an international armed conflict. In the past, these often led to "recogni-
tion of belligerency" and the application of the law relevant to international
armed conflict. However, as "recognition of belligerency" has fallen away in
recent decades, the level of intensity to be found has certainly not. The Sri Lankan
civil war is a good example. 84 To require militaries to comply with a law enforce-
ment paradigm in relation to the use of force in such circumstances would be close
to suicidal. In cases of such intensity, the laws of armed conflict would prevail.
A similar test could be applied to situations of occupation. Where resistance is
comparatively low-key and consists primarily of individual attacks, however effec-
tive, human rights law would normally have priority. On the other hand, where —
as, for example, in Iraq 85 — the resistance was of high intensity, the laws of armed
conflict would take priority.
This will not be a complete resolution of the problem in that there will still be
"gray" areas where authorities will need to make "good faith" decisions. In fact, this
reflects what already happens with respect to rules of engagement. Even in interna-
tional armed conflict, there will be occasions when, whatever the circumstances
under the laws of armed conflict, soldiers have already been restricted in their use
of force by rules of engagement that have been imposed for political or other
reasons.
However, what is not acceptable is for the current position to continue, where
service personnel may find their actions subject to ex post facto investigation, an in-
vestigation which starts with uncertainty over the underlying legal regime. This is
111
War and Peace: Where Is the Divide?
neither fair to the personnel themselves nor conducive to respect for the law. There
must be a better way!
Notes
1. HUGO CROUDS, De IURE BELLI AC PACIS LIBRI TRES (Francis W. Kelsey trans., 1925)
( 1625). This is only one of the many translations.
2. L. Oppenheim, International Law: A Treatise (1905). The ninth edition was pub-
lished in 1992.
3. Leo Tolstoy, War and Peace (1869).
4. Convention No. Ill Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259,
2271 T.S. 598.
5. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for the Ameliora-
tion of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
Aug. 1 2, 1 949, 6 U.S.T. 3217,75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners
of War, Aug. 12, 1949,6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative
to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T 3516, 75 U.N.T.S.
287; all reprinted in DOCUMENTS ON THE LAWS OF WAR 197, 222, 244, 301, respectively (Adam
Roberts & Richard Guelffeds., 3d ed. 2000).
6. U.N. Charter art. 2, para. 7 (Oct. 24, 1945), reprinted in BASIC DOCUMENTS IN
INTERNATIONAL LAW 2, 4 (Ian Brownlie ed., 5th ed. 2002).
7. See supra note 5.
8. Common Article 3 to the four Geneva Conventions of 1 2 August 1 949, reprinted in DOC-
UMENTS ON THE LAWS OF WAR, supra note 5, at 198, 223, 245, 302, respectively.
9. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention
No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 205 Consol. T.S. 277,
reprinted in id. at 73.
10. See extract from the Judgment of the International Military Tribunal at Nuremberg,
November 1948, reprinted in id. at 78.
1 1. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st
plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948), reprinted in BASIC DOCUMENTS IN INTERNATIONAL
LAW, supra note 6, at 192.
12. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A
(XXI), U.N. Doc. A/6316 (Dec. 16, 1966), 993 U.N.T.S. 3, reprinted in id. at 197.
13. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc.
A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171, reprinted in id. at 205 [hereinafter ICCPR].
1 4. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), reprinted in
id. at 245 [hereinafter ECHR].
15. Id. y art. 15.
16. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3 [hereinaf-
ter AP I] ; Protocol Additional to the Geneva Conventions of 1 2 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609
[hereinafter AP II]; both reprinted in DOCUMENTS ON THE LAWS OF War, supra note 5, at 422
and 483, respectively.
112
Charles Garraway
17. Supra note 8.
18. AP II, supra note 16, art. 1(1).
19. See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
20. Supra note 16.
21. See Preliminary Remarks on the Setting-Up of an International Tribunal for the Prose-
cution of Persons Responsible for Serious Violations of International Humanitarian Law Com-
mitted in the Territory of the Former Yugoslavia J 4, DDM/JUR/442b (1993), reprinted in 2
Virginia Morris & Michael P. Scharf, An Insider's Guide to the International
Criminal Tribunal for the Former Yugoslavia 391-92 (1995) ("according to Interna-
tional Humanitarian Law as it stands today, the notion of war crimes is limited to situations of
international armed conflict").
22. See S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994).
23. Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995), reprinted in 35
INTERNATIONAL LEGAL MATERIALS 32 (1996).
24. Id., H 126.
25. Rome Statute of the International Criminal Court art. 8.2.(c)-(e), July 17, 1998, 2187
U.N.T.S. 90, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 671, 678-79.
26. Secretary-General's Bulletin: Observance by United Nations Forces of International
Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999), reprinted in id. at 725.
27. Customary International Humanitarian Law (2 volumes: Vol. I, Rules; Vol. II,
Practice (2 Parts)) (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005).
28. See Jean-Marie Henckaerts, The ICRC Study on Customary International Humanitarian
Law - An Assessment, in CUSTOM AS A SOURCE OF INTERNATIONAL HUMANITARIAN LAW 50
(Larry Maybee & Benarji Chakka eds., 2006).
29. See, e.g., McCann v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) 97 (1995).
30. See, e.g., Ergi v. Turkey, 1998-IV Eur. Ct. H.R. 1751, 1777.
31. Cyprus v. Turkey, 35 Eur. Ct. H.R. 967 (2001); Varnava & Others v. Turkey, App. Nos.
16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/
90, Eur. Ct. H.R. (2009), reprinted in 49 INTERNATIONAL LEGAL MATERIALS 358 (2010).
32. ECHR, supra note 14, art. 5.
33. Bankovic and Others v. Belgium, 2001 -XII Eur. Ct. H.R. 333, reprinted in 41
INTERNATIONAL LEGAL MATERIALS 517 (2002).
34. Supra note 15.
35. Isayeva v. Russia, 41 Eur. Ct. H.R. Rep. 39 (2005).
36. Although the quotation is open to challenge, see Robert Harris, As Macmillan Never
Said, TELEGRAPH (UNITED KINGDOM) (June 4, 2002), http://www.telegraph.co.uk/comment/
personal-view/35774 16/ As-Macmillan-never-said-thats-enough-quotations.html.
37. See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970,
22 U.S.T. 1641, 860 U.N.T.S. 105.
38. APII, supra note 16, art. 4(2)(d).
39. See, e.g., Arab Convention for the Suppression of Terrorism art. 2(a), Apr. 22, 1998,
available at http://www.al-bab.com/arab/docs/league/terrorism98.htm.
40. See Ministry of Defence, UK Defence: Statistics, 2008, ch. 7, http://www.dasa.mod.uk/
modintranet/UKDS/UKDS2008/c7/intro.html.
41. See, e.g., R v. Clegg, [1995] 1 A.C. 482 (H.L.) (appeal taken from N. Ir.).
42. United Kingdom statement (d) on ratification of Additional Protocol I, reprinted in
DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 510.
113
War and Peace: Where Is the Divide?
43. Cited in TOM BINGHAM, THE RULE OF LAW 133 (2010).
44. . Res. 1368, S/RES/1368 (Sept. 12, 2001).
45. See Charles Garraway, Afghanistan and the Nature of Conflict, in THE War IN
AFGHANISTAN: A LEGAL ANAI YSIS 157 (Michael N. Schmitt ed., 2009) (Vol. 85, U.S. Naval War
College International Law Studies).
4e>. Memorandum from George Bush to Vice President et al., Humane Treatment of al
Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE PAPERS: THE ROAD TO
ABU GHRA1B 134 (Karen J. Greenberg & Joshua Dratel eds., 2005).
47. See Leslie Green, Rescue at Entebbe, 6 ISRAEL YEARBOOK ON HUMAN RIGHTS 312, 315
(1976).
48. The United States is engaged in an armed conflict with al Qaida, the Taliban, and
their supporters. As part of this conflict, the United States captures and detains en-
emy combatants, and is entitled under the law of war to hold them until the end of
hostilities. The law of war, and not the Covenant, is the applicable legal framework
governing these detentions.
Comments by the Government of the United States of America on the Concluding Observations
of the Human Rights Committee, U.N. Doc. CCPR/C/USA/CO/3/Rev.l/Add.l, at 2, 3 (Feb. 12,
2008).
49. See, e.g., Mary-Ellen O'Connell, When Is a War Not a War? The Myth of the Global War
on Terror, 12 ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 1 (2005).
50. See, e.g., David B. Rivkin Jr. 8c Lee A. Casey, Awlaki vs Predator, WALL STREET JOURNAL (Aug.
13, 2010), http://online.wsj.com/article/SB10001424052748704901 104575423253031580156.html.
51. Hamdan v. Rumsfeld, 548 U.S. 557, 628-32 (2006).
52. See John Bellinger, Armed Conflict with Al Qaida: A Response, OPINIO JURIS (Jan. 16,
2007), http://opiniojuris.org/2007/01/16/armed-conflict-with-al-qaida-a-response/.
53. See John F. Murphy, Will-o' -the- Wisp? The Search for Law in Non-International Armed
Conflicts, which is Chapter I in this volume, at 15; David E. Graham, Defining Non-International
Armed Conflict: A Historically Difficult Task, which is Chapter III in this volume, at 43;
Geoffrey S. Corn, Self-defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus
in Bello, which is Chapter IV in this volume, at 57; Yoram Dinstein, Concluding Remarks on
Non-International Armed Conflicts, which is Chapter XVII in this volume, at 399.
54. Corn, supra note 53.
55. See, e.g. , Geoffrey S. Corn, Making the Case for Conflict Bifurcation in Afghanistan: Trans-
national Armed Conflict, Al Qaeda, and the Limits of the Associated Militia Concept, in THE WAR
IN AFGHANISTAN, supra note 45, at 181.
56. See Department of Defense, DoD Directive 231 1.0 IE, DoD Law of War Program ^f 4.1
(2006), available at http://www.dtic.mil/whs/directives/corres/pdf/231 101 e.pdf.
57. Posse Comitatus Act, 18 U.S.C. § 1385 (2006).
58. See supra note 40.
59. For an account, see TONY GERAGHTY, WHO DARES WINS: THE STORY OF THE SPECIAL
AIR SERVICE 1950-1980 ch. 7 (1980).
60. See Wade Mansell & Emily Haslam, John Bolton and the United States' Retreat from Inter-
national Law, 14 Social Legal Studies 459 (2005).
61. See Karl S. Chang, Enemy Status and Military Detention in the War Against Al- Qaeda,
47 TEXAS INTERNATIONAL LAW JOURNAL 1 (201 1); Karl S. Chang, Enemy Status and Military De-
tention: Neutrality Law and Non-International Armed Conflict, Municipal Neutrality Statutes, the
U.N. Charter, and Hostile Intent, 47 TEXAS INTERNATIONAL LAW JOURNAL 381 (2012).
114
Charles Garraway
62. See Anthony Cullen, Key Developments Affecting the Scope of Internal Armed Conflict in
International Humanitarian Law, 183 MILITARY LAW REVIEW 65 (2005).
63. See, e.g., Egypt Urged to Protect Families of Those Killed in Protests from Intimidation
(Feb. 25, 2011), AMNESTY INTERNATIONAL, http://www.amnesty.org/en/news-and-updates/
egypt-urged-protect-families-those-killed-protests-intimidation-201 1-02-25 (describing exces-
sive use of force by security forces in response to "some protestors [who] behaved violently,
attacking public and private property, associated with repression and corruption, such as police
stations and local authorities' buildings, and members of the security forces, using rocks, and in
rarer instances petrol bombs").
64. S.C. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
65. See U.N. Human Rights Council, Report of the High Commissioner for Human Rights
on the Visit of the Office of the High Commissioner for Human Rights to Yemen, U.N. Doc. A/
HRC/18/21 (Sept. 13,2011).
66. Although the Syrian National Council was formed in October 20 1 1 , it remains to be seen
whether this is a genuine opposition.
67. See Bahrain Crackdown on Protests in Manama's Pearl Square, BBC NEWS (Mar. 16,
2011), http://www.bbc.co.uk/news/world-middle-east-12755852.
68. See IHL and Other Legal Regimes, 29 October 2010, http://www.icrc.org/eng/war-and
-law/ihl-other-legal-regmies/overview-other-legal-regimes.htm.
69. See Geoffrey S. Corn, Thinking the Unthinkable: Has the Time Come to Offer Combatant
Immunity to Non-State Actors?, 22 STANFORD LAW & POLICY REVIEW 253, 256 (201 1).
70. GC III, supra note 5, art. 118.
71. M,art. 109.
72. ICCPR, supra note 13, art. 6; ECHR, supra note 14, art. 2.
73. ICCPR, supra note 13, art. 9; ECHR, supra note 14, art. 5.
74. See Harold Koh, State Department Legal Adviser, The Lawfulness of the U.S. Operation
Against Osama bin Laden, OPINIO JURIS (May 19, 2011), http://opiniojuris.org/2011/05/19/the
-lawfulness-of-the-us-operation-against-osama-bin-laden/.
75. Supra note 33.
76. AP I, supra note 16, art. 52(2).
77. See Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831.
78. See Press Release, European Court of Human Rights, Hearing in the Inter-State Case
Georgia v. Russia (II) Concerning the 2008 Armed Conflict between the Two Countries (Sept.
22, 2011) (ECHR 150 (2011)).
79. Isayeva v. Russia, 41 Eur. Ct. H.R. Rep. 394 91 (2005).
80. Nils Melzer, International Committee of the Red Cross, Interpretive
Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (2009).
81. Mat 77.
82. Jean Pictet, Development and Principles of International Humanitarian
LAW 75-76 (1985).
83. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, H 106 (July 9).
84. The Sri Lankan civil war lasted from 1983 to 2009.
85. For example, the first Battle of Fallujah in April 2004.
115
PART IV
LEGAL STATUS OF THE ACTORS IN NON
INTERNATIONAL ARMED CONFLICTS
VI
The Status of Opposition Fighters in a Non
International Armed Conflict
Michael N. Schmitt*
The treaty law applicable to the classification of participants in a non-
international conflict is limited to Common Article 3 to the 1949 Geneva
Conventions 1 and the 1977 Additional Protocol II. 2 The former is generally
deemed reflective of customary international law, whereas the latter is not (al-
though certain individual provisions thereof certainly are). 3 Other treaties apply
during non-international armed conflicts, but do not bear on the issue of classify-
ing those involved in the conflict. 4
Common Article 3, which appears in each of the four Geneva Conventions, pro-
vides no specific guidance as to who qualifies as a "Party to the conflict," although
subsequent case law has clarified that the article encompasses conflict at a certain
level of intensity that occurs between a State's armed forces and organized armed
groups, or between such groups. 5 Textually, the article merely refers to "persons
taking no active part in hostilities," including "members of the armed forces" who
are hors de combat. 6 The reference is somewhat useful in that it suggests a norma-
tive distinction between those who actively participate in a non-international
armed conflict and those who do not. Yet, the failure to address party status
* Chair of Public International Law, Durham University Law School, United Kingdom. Profes-
sor Schmitt became the Chairman, International Law Department, U.S. Naval War College on
October 1,2011.
The Status of Opposition Fighters in a Non-International Armed Conflict
directly is unfortunate, for it begs the question of when non-State individuals or
groups qualify as a party. Complicating the issue of participant classification is the
fact that Common Article 3 makes no mention of the category "civilians."
Additional Protocol II contains slightly more granularity in its provision on the
instrument's material field of application. Article 1 extends coverage to "all armed
conflicts" between the armed forces of a State party to the Protocol and "dissident
armed forces or other organized armed groups which, under responsible com-
mand, exercise such control over a part of its territory as to enable them to carry
out sustained and concerted military operations and to implement this Protocol." 7
This is a higher threshold of applicability than that of Common Article 3 in two re-
gards. 8 First, it does not include conflicts that are solely between organized armed
groups; a State must be involved. 9 Second, the group in opposition to the govern-
ment must exercise a certain degree of control over territory. The higher thresholds
are not dealt with in this chapter, as they bear on the law that applies to a conflict,
not on the status of its participants. What is significant with regard to classification
of participants, though, are the references to dissident armed forces and organized
armed groups.
Additional Protocol II also adopts the notion of "civilian," most notably in Ar-
ticle 13 on the "protection of the civilian population." That article extends "gen-
eral protection against the dangers arising from military operations" to civilians,
and specifically prohibits both attacks against them and any actions intended to
terrorize the civilian population, but withdraws said protection "for such time as
they take a direct part in hostilities." 10 Unfortunately, Additional Protocol II, in
contrast to its international armed conflict counterpart, offers no definition of the
term "civilian." 11
Taking the two treaties together, and in light of Common Article 3's customary
status, it can be concluded that two broad categories of non-international armed
conflict participants lie in juxtaposition: civilians and organized armed groups.
The former can be subdivided into those who directly participate in hostilities and
those who do not. Organized armed groups consist of a State's armed forces, dissi-
dent armed forces or "other" organized armed groups.
This chapter examines the three types of "opposition fighters" — dissident
armed forces, other organized armed groups and civilians directly participating
in hostilities. A companion contribution to the volume deals with the status of
government fighters. The chapter does not address the criteria for the existence
of a non-international armed conflict, the subject of other contributions, except
as that topic bears on classification of participants. 12 Accordingly, it does not
explore such contentious topics as whether a non-international armed conflict
can exist during a belligerent occupation, the legal status of a conflict with
120
Michael N. Schmitt
transnational terrorists, internationalization of a conflict through intervention of
another State or external State control of insurgent groups. Rather, assuming a
non-international armed conflict (whatever form it takes), it asks how opposition
force participants in the conflict are to be classified. 13
The significance of classification is limited. For instance, the international
armed conflict concept of combatancy and the related notion of belligerent im-
munity do not exist in non-international armed conflicts. 14 Members of the oppo-
sition forces may be prosecuted for any acts that violate domestic law, even if they
are not violations of the law of armed conflict (LOAC), as is the case with attacking
members of the armed forces. 15 In light of the absence of combatancy in a non-
international armed conflict, this chapter has adopted the term "fighters" in lieu
of "combatants" to refer to those who participate in the conflict. 16 Similarly, there
is no prisoner of war regime in the context of a non-international armed conflict,
although, as explained in the chapters on detention, certain basic protections do
inure to the benefit of detainees in these conflicts.
The key consequences of classification lie in the law of targeting, for classifica-
tion determines whether LOAC prohibits an attack on an individual during a non-
international armed conflict. 17 To the extent no prohibition exists on attacking
persons with a particular classification, harm to an individual within that group
plays no role in proportionality calculations (except as military advantage) and need
not be considered when determining the precautions that attackers are required to
take during attacks to avoid harming civilians. 18 As will become apparent, the
targetability of the various categories of opposition fighters is a matter of some
contention in LOAC circles.
Before turning to an examination of the various categories of opposition fight-
ers, it should be briefly noted that if the forces of another State intervene on behalf
of the opposition, an international armed conflict ensues between that State and
the State against whom the pre-existing rebellion is under way; the conflict has been
internationalized. 19 Unless the external State exercises a sufficiently high level of
control over the opposition forces, a non-international armed conflict continues
between those forces and their government. 20 Because the external State's forces
are involved in an international armed conflict, their status, which would be that of
combatants, is not examined below. 21
Individuals Who Are Not Members of a "Traditional" Opposition Force
As a general rule, individual criminals and purely criminal groups do not consti-
tute "parties" to a non-international armed conflict, regardless of whether they
engage alone in acts of violence against the government (or non-government
121
The Status of Opposition Fighters in a Non-International Armed Conflict
organized armed groups) or operate in the midst of an ongoing non-international
armed conflict. Since they neither are a party nor operate on behalf of one, domestic
law and international human rights norms will usually govern actions taken against
them.
The official International Committee of the Red Cross (ICRC) commentary on
Common Article 3 suggests that the drafters intended to preclude its applicability
to common criminality. Early in the drafting process, a proposal to extend the 1949
Geneva Conventions to "all cases of armed conflict which are not of an interna-
tional character, especially cases of civil war, colonial conflicts, or wars of religion,
which may occur in the territory of one or more of the High Contracting Parties" 22
was met with objection on the basis that it might be interpreted as applying to situ-
ations involving "no more than a handful of rebels or common brigands." 23 Fur-
ther concern was expressed about the "risk of ordinary criminals being encouraged
to give themselves a semblance of organization as a pretext for claiming the benefit
of the Convention, representing their crimes as 'acts of war' in order to escape pun-
ishment for them." 24 According to the commentary, numerous delegations con-
cluded that "[t]he expression [not of an international character] was so general, so
vague, that ... it might be taken to cover any act committed by force of arms — any
form of anarchy, rebellion, or even plain banditry." 25
Proponents of the text in question were sensitive to these concerns, responding
that "insurgents ... are not all brigands" and "the behaviour of the insurgents in the
field would show whether they were in fact mere felons, or, on the contrary, real
combatants who deserved to receive protection under the Conventions." 26 The
ICRC's non-binding and non-exclusive list of sample criteria for non-international
armed conflicts, by making reference to "the Party in revolt against the de jure
Government" and "insurgents," adopts the same position, 27 one likewise strength-
ened by the ICRC Commentary's use elsewhere of the term "rebel Party." 28
As these examples illustrate, the law of armed conflict traditionally envisioned
non-international armed conflict as consisting of only those activities evidencing
some sort of politically motivated challenge to State authorities in order to attain
political control and authority or displace those of the government. However, the
evolving nature of criminality has brought this traditional understanding into
question.
Consider the criminal gangs active in Colombia and Mexico. 29 They field forces
today that often outgun the regular armed forces. Unlike brigands, bandits and
other criminals who merely take advantage of the instability characterizing armed
conflict, these gangs directly challenge State authorities in order to create zones in
which they can with impunity pursue their criminal activities. The respective gov-
ernments must resort to military force to counter the organizations, civilians are
122
Michael N. Schtnitt
placed at great risk from the ensuing hostilities and criminal gangs often control
wide swaths of territory.
In other words, these are situations in which criminal gangs are highly orga-
nized and conduct hostilities with the government at a level of intensity consis-
tent with the existence of a non-international armed conflict. There is little to
distinguish them from the Commentary s description of Common Article 3 non-
international armed conflicts as "armed conflicts, with armed forces on either
side engaged in hostilities — conflicts, in short, which are in many respects similar
to an international war, but take place within the confines of a single country." 30
To the extent that the law of non-international armed conflict frees States to deal
militarily with high-order political violence through application of LOAC con-
duct of hostilities rules, the same rationale would justify application to suffi-
ciently organized and intense criminal activity directed against the State. Such an
interpretation would be consistent with the assertion in the commentary on
Common Article 3 that "the scope of application of the Article must be as wide as
possible." 31 Accordingly, it is at least arguable that in light of the context and
nature of the criminal armed activities States face today, imposing a political
motivation requirement, in addition to organization and intensity, for qualifica-
tion as a non-international armed conflict makes little normative or practical
sense.
Should members of a criminal group or individual criminals become involved
in a non-international armed conflict on behalf of one of the parties, they would
qualify as members of an organized armed group or direct participants in hostili-
ties, respectively, as those appellations are described below. With regard to groups,
their activity in support of the party, considered as a whole, would have to consti-
tute what is in a sense "group participation in hostilities" before qualifying as an
organized armed group involved in a non-international armed conflict. Key fac-
tors in such an assessment include the nature of the group's activity and its nexus to
the conflict. For instance, if a dissident armed force that controls territory allows a
criminal group to engage in criminal activities in exchange for conducting attacks
on the State's armed forces, guarding its military facilities or providing logistics for
its combat operations, the criminal group would be operating on the dissident
group's behalf and therefore qualify. By way of contrast, merely paying a "tax" on
production or transhipment of drugs to an organized armed group in control of an
area, as is the case in Afghanistan with certain narcotics organizations, would not
render the criminal group an organized armed group. 32
123
The Status of Opposition Fighters in a Non-International Armed Conflict
Dissident Armed Forces
The most straightforward category of opposition forces is dissident armed forces.
As noted, Common Article 3 and Additional Protocol II both utilize the term
"armed forces," the former with regard to protections that attach once members
thereof are hors de combat, the latter in its provision on material field of applica-
tion. The context of the Common Article 3 reference clearly implies the possibility
of "armed forces" on both sides of a non-international armed conflict, since the
relevant provision applies to "each Party to the conflict." 33 This interpretation be-
comes express with Additional Protocol II's reference to "dissident" armed forces.
In the latter instrument, the phrase "dissident armed forces" is used in contra-
distinction to "other organized armed groups." On this basis, it might be argued
that "other organized armed groups" constitutes a separate category from dissident
armed forces, a point with which the author disagrees since there is no meaningful
difference in the legal regimes governing the detention or targeting of the two cate-
gories. However, acknowledging that some commentators distinguish among vari-
ous members of an "other organized group" with regard to targeting, a point to be
discussed, this chapter treats dissident armed forces and other organized armed
groups separately for the sake of analysis.
What is clear is that dissident armed forces do not attain civilian status by virtue
of their break from the State's regular military. According to the ICRC's 2009 Inter-
pretive Guidance on the Notion of Direct Participation in Hostilities,
Although members of dissident armed forces are no longer members of State armed
forces, they do not become civilians merely because they have turned against their gov-
ernment. At least to the extent, and for as long as, they remain organized under the
structures of the State armed forces to which they formerly belonged, these structures
should continue to determine individual membership in dissident armed forces as
well. 34
While other aspects of the Interpretive Guidance proved controversial, this text
elicited no serious objection from the international experts participating in the
drafting process. 35
Yet, merely having been members of the armed forces of a State does not suffice
to qualify individuals as members of a dissident armed force. Only breakaway units
that retain some degree of their original organizational structure qualify. 36 Fighters
who are former members of the armed forces but have not remained with their
units (such as deserters) are either members of other organized armed groups or
civilians directly participating in hostilities.
124
Michael N. Schmitt
Near-universal consensus exists that dissident armed forces, like members of
the State's armed forces, are targetable at all times under the law of armed conflict.
Stated with greater precision, it is not a violation of the law of armed conflict to "at-
tack" them. 37 This is evident from the plain text of Common Article 3(1), which
protects persons who are taking no active part in hostilities from acts of violence,
including members of the armed forces who have laid down their arms or are hors
de combat. The only reasonable interpretation of the provision is that those mem-
bers of the armed forces who are still "in the fight" lack protection from attack un-
der LOAC during a non-international armed conflict. This position comports with
the common understanding of the principle of distinction, which requires an at-
tacker to distinguish between combatants and civilians and direct attacks only
against the former. The principle is universally accepted as customary law in both
international armed conflicts and non-international armed conflicts. 38
Although the notion of "armed forces" transcends the boundary between
international and non-international armed conflict, its precise parameters do
not. Plainly, members of the regular armed forces qualify as "armed forces" in a
non-international armed conflict, as do members of the regular armed forces in re-
bellion against the State. 39 The concept of armed forces in international armed con-
flict includes "militia and volunteer corps forming part of such armed forces." 40 It
is reasonable to extend this inclusion into non-international armed conflict such
that they would also qualify as part of the State's armed forces, or, if in rebellion, a
component of the dissident armed forces.
The case of paramilitary or armed law enforcement agencies involved in a non-
international armed conflict is more complicated. As a matter of customary inter-
national law in international armed conflict, they may be incorporated into the
armed forces, and thereby lose any claim to civilian status. 41 Additional Protocol I
adds a further requirement, that incorporation be notified to the other party to the
conflict, 42 although by customary law incorporation is solely a factual matter and
failure to so notify the enemy does not preclude such groups' treatment as mem-
bers of the armed forces for purposes of targeting and detention. 43
The situation in non-international armed conflict differs markedly. In that op-
position fighters are in violation of domestic law by virtue of their armed activities,
law enforcement agencies necessarily engage in operations against them. Accord-
ingly, in non-international armed conflict there is no logic for incorporation;
fighting lawlessness is the very raison d'etre of law enforcement entities, a task un-
diminished by the existence of a non-international armed conflict. Thus, even if
wholly separate from the military, perhaps even conducting autonomous opera-
tions that are not coordinated with those of the armed forces, law enforcement and
similar agencies qualify as the armed forces for the purposes of non-international
125
The Status of Opposition Fighters in a Non-International Armed Conflict
armed conflict classification. The Commentary to Additional Protocol II explicitly
embraces this interpretation:
The term "armed forces" of the High Contracting Party should be understood in the
broadest sense. In fact, this term was chosen in preference to others suggested such as,
for example, "regular armed forces", in order to cover all the armed forces, including
those not included in the definition of the army in the national legislation of some
countries (national guard, customs, police forces or any other similar force). 44
To the extent any such groups — or units thereof — act in opposition to the govern-
ment, they will be considered and treated as "dissident armed forces."
Finally, it is possible for State armed forces to be transformed into opposition
organized armed groups once they lose power. This was the situation in Afghani-
stan upon either adoption of United Nations Security Council Resolution 1386 in
December 2001 or the installation of Hamid Karzai as interim president during the
June 2002 loyajirga. 45 Arguably, it is also the situation of QaddafTs forces, at least
from the perspective of those States, such as the United States, which have recog-
nized the Transitional National Council as the legitimate government of Libya.
Whether former military forces qualify as a dissident armed force or "other orga-
nized armed group" is unresolved as a matter of law, but this is of little practical sig-
nificance in light of the position taken in this chapter that dissident armed forces
are but a category of organized armed forces. 46
Other Organized Armed Groups
A second category of opposition forces consists, for the sake of analysis, of "other
organized armed groups," an expression drawn from the text of Additional
Protocol II. It is well established that the existence of an armed conflict requires
the participation of an armed force of some sort. In the context of international
armed conflict, this requirement poses little difficulty. Armed forces of one State,
which are organized by definition, face those of another. By contrast, the situation
is more complex in non-international armed conflict, for armed conflict must
be distinguished from "situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence or other acts of a similar nature." 47 In
Tadic, the Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) made such a distinction by defining non-international armed
conflict as situations of "protracted armed violence between governmental au-
thorities and organized armed groups or between such groups within a State," 48 a
126
Michael N. Schmitt
test combining intensity and organization which has been adopted in the Rome
Statute of the International Criminal Court. 49
Until recently, it was unclear whether organized armed groups other than the
dissident armed forces comprise groups who are directly participating in
hostilities or constitute a separate category of "non-civilians." 50 Neither Common
Article 3 nor Additional Protocol II directly addresses the scope of the concept of
civilian. As noted, the former avoids the term altogether, instead simply extending
protection to those taking no active part in hostilities, while the latter employs the
term without defining it. 51
The issue of whether members of organized armed groups are civilians or a sep-
arate category bears on the conduct of hostilities. In particular, Article 13 of Addi-
tional Protocol I, which is generally accepted as reflective of customary
international law, 52 provides:
2. The civilian population as such, as well as individual civilians, shall not be the ob-
ject of attack. Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this part, unless and for such time
as they take a direct part in hostilities. 53
So, if the members are civilians, they are only targetable while participating in the
hostilities. If not, they maybe treated as analogous to members of the armed forces,
and thereby remain targetable even when not participating.
The ICRC acknowledged this normative dilemma in its 2005 Customary Inter-
national Humanitarian Law study:
It can be argued that the terms "dissident armed forces or other organized armed
groups . . . under responsible command" in Article 1 of Additional Protocol II inferen-
tially recognise the essential conditions of armed forces, as they apply in international
armed conflict . . . , and that it follows that civilians are all persons who are not mem-
bers of such forces or groups. Subsequent treaties, applicable to non-international
armed conflicts, have similarly used the terms civilians and civilian population without
defining them.
While State armed forces are not considered civilians, practice is not clear as to whether
members of armed opposition groups are civilians subject to Rule 6 on loss of protec-
tion from attack in case of direct participation or whether members of such groups are
liable to attack as such, independently of the operation of Rule 6 [which deals with the
issue of direct participation in hostilities]. 54
127
The Status of Opposition Fighters in a Non-International Armed Conflict
This very issue occupied the attention of a group of international experts con-
vened by the ICRC from 2003 to 2008 to consider the notion of direct participation
by civilians. Various suggestions were offered, including an approach by which
members of an organized armed group might be treated as civilians who were con-
tinuously participating in hostilities, and therefore continuously legitimate targets.
However, the ICRC worried that the approach would "seriously undermine the
conceptual integrity of the categories of persons underlying the principle of distinc-
tion, most notably because it would create parties to non-international armed con-
flicts whose entire armed forces remain part of the civilian population," 55 a point
later acknowledged by the District Court for the District of Columbia in Gherebi. 56
Accordingly, the Interpretive Guidance took the reasonable position that "as the
wording and logic of Article 3 GC I-IV and Additional Protocol II reveals, civilians,
armed forces, and organized armed groups of the parties to the conflict are mutu-
ally exclusive categories also in non-international armed conflict." 57 Individuals
who are members of organized armed groups are accordingly not civilians. 58 The
ICTY embraced this stance in Galic. 59 This is an important point, for if members of
an organized armed group are not civilians, the LOAC extending protection to
civilians is inapplicable to them. For instance, they may be attacked regardless of
whether they are directly participating; their vulnerability to attack is status, not ac-
tivity, based.
Not all groups in a battlespace are "organized armed groups." To qualify, the
group in question must be both "organized" and "armed." With regard to the or-
ganized criterion, Article 1 of Additional Protocol I refers to a group that is "under
responsible command." This phrase is explicatory of the notion of organization.
The ICRC commentary to the article explains that
[t]he existence of a responsible command implies some degree of organization of the
insurgent armed group or dissident armed forces, but this does not necessarily mean
that there is a hierarchical system of military organization similar to that of regular
armed forces. It means an organization capable, on the one hand, of planning and car-
rying out sustained and concerted military operations, and on the other, of imposing
discipline in the name of a de facto authority. 60
The ICTY dealt with the issue of the threshold level of organization in the case of
Limaj. In assessing the Kosovo Liberation Army (KLA), the Trial Chamber held that
some degree of organisation by the parties will suffice to establish the existence of an
armed conflict. This degree need not be the same as that required for establishing the
responsibility of superiors for the acts of their subordinates within the organisation, as
128
Michael N. Schmitt
no determination of individual criminal responsibility is intended under this provision
of the Statute. 61
It went on to cite an ICRC document submitted to the Preparatory Commission
for the Rome Statute's elements of crimes, which stated that armed conflict "pre-
supposes the existence of hostilities between armed forces organised to a greater or
lesser extent.'" 62 Looking to factors like the existence of a general staff and headquar-
ters, designated military zones, adoption of internal regulations, the appointment
of a spokesperson, coordinated military actions, recruitment activities, the wear of
uniforms and negotiations with the other side, 63 the Chamber concluded that the
KLA was an organized armed group, 64 a determination consistent with those in
other cases examining the same issue. 65
Similarly, in the Haradinaj case the ICTY surveyed all previous judgments rele-
vant to the issue of organization before concluding that no single factor was neces-
sarily determinative. Rather, the Trial Chamber suggested a holistic approach.
Illustrative factors that bore on organization included
existence of a headquarters; the fact that the group controls a certain territory; the abil-
ity of the group to gain access to weapons, other military equipment, recruits and mili-
tary training; its ability to plan, coordinate and carry out military operations, including
troop movements and logistics; its ability to define a unified military strategy and use
military tactics; and its ability to speak with one voice and negotiate and conclude
agreements such as cease-fire or peace accords. 66
These cases suggest two indispensable elements of the "organized" criterion. To
begin with, the group in question must exhibit a degree of structure. The structure
need not be strictly hierarchical or implemented in any formalistic manner, al-
though such factors are highly indicative of the required organizational robustness.
For instance, many non-military organized armed groups have flat and decentral-
ized structures. Yet, as has been noted elsewhere, while such organizational models
may complicate identification of a group's members, "operations in Afghanistan
and Iraq demonstrate that these challenges are not insurmountable." 67 Nor need
an organized armed group have explicit ranks, wear distinctive emblems, operate
from established bases or recruit in a particular fashion.
That said, a group that is transitory or ad hoc in nature does not qualify; in other
words, an organized armed group can never simply consist of those who are engag-
ing in hostilities against the State, sans plus. It must be a distinct entity that the
other side can label the "enemy" for reasons ranging from the development of field
strategy and tactics to the conduct of negotiations. A qualifying group must also be
capable of exercising some degree of control over the activities of its members. In
129
The Status of Opposition Fighters in a Non-International Armed Conflict
particular, it must be sufficiently organized to enforce compliance with LOAC,
although failure to actually do so does not bar qualification as an organized armed
group. 68
Additionally, to be "organized," a group must be able to act in a coordinated
fashion, albeit not to the extent of the regular armed forces. This requirement im-
plies an ability to plan and execute group activities, collect and share intelligence,
communicate among members, deconflict operations and provide logistic support
to combat operations. Collective action alone, in the sense of multiple autonomous
actions against the State (or another organized armed group), does not suffice; the
actions engaged in must evidence a group character.
The organization requirement is especially relevant in three regards. First, there
is no non-international armed conflict equivalent of international armed conflict's
levee en masse. 69 An uprising against the government, no matter how intense, can
only constitute a non-international armed conflict once the opposition begins to
exhibit some degree of organization. Until then, it is an internal disturbance and
thereby excluded from the ambit of non-international armed conflict.
Second, an organized armed group cannot consist solely of those who share the
same basis for opposition to the government, for they lack the requisite degree of
organization and coordination. As an example, whereas individual terrorist groups
in a non-international armed conflict may qualify separately as organized armed
groups, it is only once they begin to affiliate and to coordinate their activities that
they become a single organized armed group. Consider al Qaeda, an organized
armed group consisting of loosely related subgroups. The fact that others may
share al Qaeda's ideology or are inspired by the organization does not alone suffice
to qualify them as al Qaeda members. Instead, they are either members of a sepa-
rate organized armed group, civilians directly participating in hostilities or mere
violent criminals. Thus, there can, legally, be no such thing as a "war on terrorism"
as such, because the generic category of terrorists cannot constitute a single party to
an armed conflict. It is only once particular groups are somehow affiliated and plan
or coordinate activities in concert that they may be treated as a distinct organized
armed group.
Third, cyber attacks have raised the possibility of virtual organization. Online
organizations are commonplace in contemporary life. In many cases, the members
thereof never physically meet. They may not even know the identities of other
members. If a collection of online hackers conducts related operations against a
government (assuming such operations rise to the level of armed actions as a mat-
ter of law), can it meet the organization criterion? Along similar lines, can persons
who conduct kinetic actions as members of a group constituted and coordinating
entirely online make up an organized armed group?
130
Michael N. Schmitt
Individuals operating autonomously, even if targeting the same State entities,
are not an organized armed group. There is no organizational element and their
actions lack coordination. A similar conclusion would hold with regard to individ-
uals who operate collectively, but not cooperatively. During the cyber attacks
against Georgia in 2008, for example, a website appeared containing hacker tools
and a list of Georgian government and civilian targets. 70 Using that site, hundreds
of individuals began conducting individual attacks. Again, the absence of organi-
zation and of cooperative activities would preclude characterization of the attack-
ers as members of an organized armed group.
On the other hand, a virtual group can have a specific leadership and organiza-
tional structure and conduct highly synchronized cyber operations. The only ap-
parent obstacle to qualification as an organized armed group would appear to be
the requirement that organizational structure allow for enforcement of LOAC.
There is presently no consensus as to whether the difficulty a virtual group would
have enforcing LOAC precludes qualification as an organized armed group, such
that the virtual members would at most qualify as civilian direct participants.
The second criterion of an organized armed group is that it be "armed." Logi-
cally, a group is armed when it has the capacity to carry out "attacks," defined in
LOAC as "acts of violence against the adversary, whether in offence or in de-
fence." 71 Such acts must be based on the group's intentions, not those of individual
members. This conclusion derives from the fact that while many members of the
armed forces have no violent function, the armed forces as a whole are nevertheless
"armed" as a matter of LOAC. 72 Conversely, the mere fact that certain members of
a group participate in hostilities does not render the group "armed" absent a
shared purpose of carrying out the qualifying attacks.
More problematic is a group that does not itself carry out attacks, but performs
acts that amount to direct participation in hostilities, such as collecting tactical in-
telligence for use by other groups in specific attacks. To the extent that acts consti-
tuting direct participation render individual civilians subject to attack, it is a
reasonable extrapolation to conclude that a group with a purpose of directly partic-
ipating in the hostilities is "armed." Of course, such groups could only exist in the
context of a non-international armed conflict in which another group was con-
ducting attacks, for without attacks there is no armed conflict in the first place.
The one area of potential difficulty with regard to the armed criterion involves
groups that engage in cyber operations. By the approach taken above, a group of
this kind would have to be mounting operations that rose to the level of a cyber "at-
tack" as a matter of law or otherwise be engaging in cyber activities that amounted,
as discussed, to direct participation in either cyber or kinetic attacks. While dis-
agreement exists as to which cyber operations constitute attacks under LOAC, 73
131
The Status of Opposition Fighters in a Non-International Armed Conflict
there is consensus that any cyber operation resulting in injury to or death of indi-
viduals or damage to or destruction of objects qualifies. There is also agreement
that cyber activities that merely cause inconvenience or irritation do not.
Certain organized groups consist of both armed and non-armed wings. This is
the case, for instance, with Hamas and Hezbollah. It is generally accepted that
when the group in question is composed of subgroups, only those that engage in
hostilities qualify as organized armed groups. Individuals who straddle both wings,
such as the overall leader, are members of the armed subgroup, notwithstanding
their non-hostile roles.
Controversy surrounds one aspect of status as a member of an organized armed
group. Specifically, the question is who among the members may be attacked when
not directly engaged in hostilities. A restrictive view, represented by the Interpretive
Guidance, adopts the notion of "continuous combat function" as the key to mem-
bership. The term is defined as a "continuous function for the group involving his
or her direct participation in hostilities." 74
Although the question of which acts qualify as "direct participation" is itself
somewhat contentious, 75 the issue need not be explored here. Suffice it to say that
by the Guidance standard only those with a continuous combat function may be
treated as members of an organized armed group and therefore attackable at any
time during the period of their membership. Absent such a function, individuals
affiliated with the group are to be treated as civilians who can only be attacked for
such time as they participate in the hostilities. 76
In justification, the Interpretive Guidance correctly notes the difficulty during a
non-international armed conflict of distinguishing civilians from members of or-
ganized armed groups, and points to the fact that membership in an organized
armed group is seldom formalized, "other than taking up a certain function for the
group." 77 Groups may not wear uniforms, operate from fixed bases or fight em-
ploying classic military tactics and they are often organized informally and operate
clandestinely. Complicating matters is the reality that civilians in the battlespace
may carry weapons for their own protection. Therefore the requirement of contin-
uous combat function, by setting a high bar for membership, appears to afford the
civilian population enhanced protection from mistaken attacks.
These concerns are valid, but, for both practical and normative reasons, over-
stated. In fact, organized armed groups often have a membership structure based
on more than mere function. Members frequently wear uniforms or other distin-
guishing garb and may operate from fixed bases, especially when in control of terri-
tory or operating from remote locations. 78 For example, the Red Army, Hamas,
Hezbollah, FARC, Tamil Tigers and KLA were often distinguishable from the civil-
ian population and operated in a manner not unlike the regular armed forces.
132
Michael N. Schmitt
Membership may also be confirmed by intelligence ranging from human sources
and communications intercepts to captured documents and interrogation of cap-
tured fighters. So, from a practical perspective, it is frequently a relatively simple
matter to discriminate between civilians and members of organized armed groups.
When it is not, the law itself takes account of the uncertainty. Article 50. 1 of Addi-
tional Protocol I, a provision generally deemed reflective of customary interna-
tional law in both international armed conflicts and non-international armed
conflicts, 79 provides that " [i] n case of doubt whether a person is a civilian, that per-
son shall be considered to be a civilian."
The result of the continuous combat function criterion is therefore inequity in
the law. By the proposed standard, direct attack on a member of an organized
armed group without a continuous combat function is prohibited (indeed, such an
attack would be a war crime since the individual qualifies as a civilian), but a mem-
ber of the State's armed forces who performs no combat-related duties may be at-
tacked at any time. This is a rather curious result in light of the fact that the
organized armed group lacks any domestic or international legal basis for
participation in the conflict in the first place. The standard badly skews the bal-
ance between military necessity and humanitarian considerations that undergirds
allofLOAC. 80
A more reasoned approach, and one that better comports with the underlying
logic of the distinction between civilians and organized armed groups, is to simply
treat insurgent fighters and members of the armed forces equally. By it, members
of organized armed groups may be attacked so long as they remain active members
of the group, regardless of their function. It makes no more sense to treat an indi-
vidual who joins a group that has the express purpose of conducting hostilities as a
civilian than it would to differentiate between the various members of the regular
armed forces. After all, and as noted in the Interpretive Guidance itself (albeit in the
context of international armed conflict),
it would contradict the logic of the principle of distinction to place irregular armed
forces under the more protective legal regime afforded to the civilian population
merely because they fail to distinguish themselves from that population, to carry their
arms openly, or to conduct their operations in accordance with the laws and customs
of war. Therefore, even under the terms of the Hague Regulations and the Geneva Con-
ventions, all armed actors showing a sufficient degree of military organization and be-
longing to a party to the conflict must be regarded as part of the armed forces of that
party. 81
A final issue with regard to organized armed groups in non-international armed
conflicts involves mixed conflicts, that is, conflicts with both international and
133
The Status of Opposition Fighters in a Non-International Armed Conflict
non-international components. The Interpretive Guidance raises this prospect in
its assertion that "organized armed groups operating within the broader context of
an international armed conflict without belonging to a party to that conflict could
still be regarded as parties to a separate non-international armed conflict." 82 A
group belongs to a party when at least a de facto relationship exists between the
group and the party to the international armed conflict. Mere tacit agreement suf-
fices so long as it is clear for which side the group is fighting. 83 The basis for the po-
sition is straightforward — since only States may be party to an international armed
conflict, a non-State group would have to be affiliated with a State to qualify as a
party. By contrast, non-international armed conflict necessarily involves at least
one party that is not a State or otherwise an extension thereof.
The prospect of groups appearing in the battlespace that do not belong to any of
the parties to an international armed conflict is far from hypothetical. For instance,
during the international armed conflict phases in Afghanistan and Iraq, coalition
troops regularly faced forces that were not allied with the Taliban or the Baathist
regimes. In particular, certain Shia militia groups in Iraq opposed both the coali-
tion forces and those of the Iraqi government in the hope of eventually seizing
power themselves.
From a practical perspective, an approach that automatically renders hostilities
with a non-affiliated organized armed group as a separate non-international
armed conflict is problematic in that it requires application of separate bodies of
law to colocated hostilities. Therefore, an argument can be made that it is prefera-
ble to ask whether there is an unambiguous nexus between the actions of the group
in question and the international armed conflict. 84 If so, the law applicable in inter-
national armed conflict would continue to govern hostilities with the group. If not,
the group would qualify as an organized armed group in a non-international
armed conflict.
Regardless of one's position on this specific issue, there are undoubtedly situa-
tions in which international and non-international conflicts coexist. 85 For in-
stance, a non-international armed conflict may survive in a situation where an
international armed conflict breaks out. In Afghanistan, non-international armed
conflict between the Taliban-led Afghan government and the Northern Alliance
was under way at the time coalition forces began operations in 2001. Until the co-
alition exercised "overall control" of Northern Alliance operations, that conflict
continued alongside the international armed conflict between the coalition States
and Afghanistan. 86
Despite the complexity of classifying conflict, it is important to emphasize the
fact that classification of participants in such conflicts tracks the criteria normally
applied in the two types of conflicts. The fact that an international armed conflict is
134
Michael N. Schmitt
ongoing in the same battlespace and at the same time as a non-international armed
conflict has no bearing on qualification of any groups involved in the latter as
"organized armed groups."
Civilians Who Directly Participate in Hostilities
The final category of fighters in armed opposition to the government comprises in-
dividuals who are members of neither dissident armed forces nor any other orga-
nized groups. Their activities alone cannot constitute a non-international armed
conflict, for such a conflict cannot exist without an organized armed group on at
least one side. Thus, the category of directly participating civilians only has mean-
ing in the context of an ongoing non-international armed conflict.
Individuals "who directly participate in hostilities on a merely spontaneous,
sporadic or unorganized basis" make up the category. 87 Examples include those
who engage in individual acts for pay (e.g., a fee for emplacement of improvised ex-
plosive devices (IEDs)) or for other reasons unrelated to group affiliation, as well as
groups of individuals who take part in the hostilities without prior organization
and coordination (as in a mob that attacks a military facility). By the Interpretive
Guidance's approach, the category would extend to those members of an armed
group who do not have a continuous combat function, but which at times take up
arms or engage in other acts amounting to direct participation.
The topic of direct participation in hostilities has been the subject of extensive
and lively discourse in the literature and need only be summarized here. 88 It is an
important debate, for, unlike members of the dissident armed forces and other or-
ganized armed groups, direct participants may only be attacked while they engage
in acts of participation. As noted in Additional Protocol II, Article 13.3, civilians
enjoy protection from attack, "unless and for such time as they take a direct part in
hostilities." Resultantly, the options for targeting them are dramatically reduced.
With regard to the concept of direct participation, two questions are key: ( 1 )
what acts qualify a civilian as a direct participant in hostilities; and (2) when is he or
she participating? The Interpretive Guidance proffers three cumulative "constitu-
tive elements" of acts that constitute direct participation.
1 . The act must be likely to adversely affect the military operations or military capac-
ity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruc-
tion on persons or objects protected against direct attack (threshold of harm), and
2. There must be a direct causal link between the act and the harm likely to result ei-
ther from that act, or from a coordinated military operation of which that act consti-
tutes an integral part (direct causation), and
135
The Status of Opposition Fighters in a Non-International Armed Conflict
3. The act must be specifically designed to directly cause the required threshold of
harm in support of a party to the conflict and to the detriment of another (belligerent
nexus). 89
These criteria generally capture the essence of direct participation, although
there is some disagreement with the standards around the margins. 90 For instance,
the first criterion could be expanded to encompass acts that enhance one's own
military capacity, rather than merely negatively affecting the enemy. Further, the
causal link as explained in the Guidance is overly restrictive. 91 As an example, it ex-
cludes assembly of an improvised explosive device on the basis that such participa-
tion is mdirect. 92 This assertion flies in the face of common sense; no State that
engages in combat could reasonably accept it. The Guidance also labels voluntary
human shielding as indirect, a position that is likewise highly questionable. 93 De-
spite such concerns, the three elements fairly capture what is generally understood
to be direct participation — acts that militarily affect the parties in a fairly direct
manner and that are related to the ongoing armed conflict.
Much more problematic is the question of when may direct participation be
said to be happening, for a civilian only loses immunity from attack during that pe-
riod. At issue is the "for such time" verbiage in the direct participation norm,
which is properly characterized as customary in nature. 94
The Interpretive Guidance asserts that "measures preparatory to the execution of
a specific act of direct participation in hostilities, as well as the deployment to and
the return from the location of its execution, constitute an integral part of the
act." 95 However, many of the experts involved in the project of developing the
Guidance argued for a broader interpretation of "preparatory," such that the period
of participation should extend as far before and after a hostile action as a causal
connection existed. 96 As an example, the broader approach would include assem-
bling an IED and perhaps even acquiring the necessary materials.
There was also significant objection to the Interpretive Guidance's assertion that
individuals who participate in hostilities on a recurrent basis regain protection
from attack between their operations, losing it again only upon launching the next
attack. This dynamic has become known as the "revolving door," which the Guid-
ance somewhat curiously suggests is an "integral part, not a malfunction of IHL." 97
The approach flies in the face of military common sense and accordingly repre-
sents a distortion of LOAC's military advantage/humanitarian considerations bal-
ance. This is especially so in the context of irregular warfare, where clandestine
activities by insurgent groups are common. Again, consider the case of an IED attack.
If the insurgent is discovered deploying to the attack location, implanting the IED
or returning from the operation, the attack will likely be foiled since IED attacks are
136
Michael N. Schmitt
usually only successful when the devices can be laid secretly. As a result, the best
option for countering future attacks is through heuristic intelligence analysis,
which would reveal patterns of IED-implanting activities that allow for pinpoint-
ing those involved through human and technical intelligence. Yet by the Interpre-
tive Guidance position, they could not be attacked until launching the next
operation, an unacceptable result militarily.
The only viable approach is one in which a civilian who directly participates in
hostilities on a recurring basis remains targetable until he or she opts out of the
hostilities in an unambiguous manner. There is, of course, a risk that a direct par-
ticipant might actually have decided to cease all hostile activities without the
knowledge of the forces he or she has been attacking. But it is more sensible to have
the participant, who enjoyed no right to participate in the first place, bear the risk
of mistake rather than his or her former victims. The requirement to presume civil-
ian status in the event of reasonable doubt further mitigates this risk.
Conclusions
In a non-international armed conflict, opposition fighters can be divided into two
categories — members of an organized armed group and civilian direct participants
in hostilities. The former category includes dissident armed forces and other
groups that are both "organized" and "armed." The argument that a member of an
organized armed group must be treated as a civilian if he or she does not have a
continuous combat function in the group was rejected as both impractical and
contrary to the logic of the law.
The result of this binary classification is that there is no LOAC prohibition on
attacking members of organized armed groups at any time, just as there is no inter-
national law prohibition on attacking members of the government's forces. 98 Only
when dealing with a fighter who is unaffiliated with a group, and who is therefore a
civilian temporarily deprived of protection as such, does a temporal limitation
arise. This approach accords neatly with the foundational premise of the law of
armed conflict — that the law must balance military necessity and humanitarian
considerations. Further parsing of the prevailing binary classification or otherwise
complicating it will only serve to confuse matters in what is perhaps the most con-
fusing genre of conflict — that which is non-international.
Notes
1. Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for
137
The Status of Opposition Fighters in a Non-International Armed Conflict
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment
of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III];
Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Common Article 3].
2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 609
[hereinafter AP II].
3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ffll
79 & 82 (July 8); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.),
1986 I.C.J. 54, ^| 218 (June 27) [hereinafter Nicaragua]. It is generally acknowledged that certain
Additional Protocol II provisions, such as that prohibiting attacks on civilians (Article 13.2), are
reflective of customary international law.
4. Examples include the Statute of the International Criminal Court, the Ottawa Conven-
tion on the Prohibition of Anti-personnel Mines, the Convention on Certain Conventional
Weapons as amended, the Chemical Weapons Convention, the Hague Convention for the Pro-
tection of Cultural Property and its Second Protocol and the Convention on Cluster Munitions.
5. Prosecutor v. Tadic, Case No. IT-94-1, Appeals Chamber Decision on the Defence Mo-
tion for Interlocutory Appeal on Jurisdiction, U 70 (Int'l Crim. Trib. for the Former Yugoslavia
Oct. 2, 1995) [hereinafter Tadic]; Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment, 1 90
(Int'l Crim. Trib. for the Former Yugoslavia Nov. 30, 2005) [hereinafter Limaj]; Prosecutor v.
Milosevic, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, % 16 (Int'l Crim.
Trib. for the Former Yugoslavia June 16, 2004) [hereinafter Milosevic]. The test was adopted in
the Statute of the International Criminal Court. Rome Statute of the International Criminal
Court art. 8(2)(f). July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
6. Common Article 3.1, supra note 1.
7. AP II, supra note 2, art. 1.1.
8. On the distinction between the thresholds, see Charles Lysaght, The Scope of Protocol II
and Its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights
Instruments, 33 AMERICAN UNIVERSITY LAW REVIEW 9 (1983); Sylvie Junod, Additional Protocol
II: History and Scope, 33 AMERICAN UNIVERSITY LAW REVIEW 29 ( 1983).
9. The drafters of the Protocol considered including the situation of a conflict between or-
ganized armed groups without the involvement of a State, but decided against doing so on the
basis that the scenario was largely theoretical. COMMENTARY ON THE ADDITIONAL PROTOCOLS
of 8 June 1977 to the Geneva Conventions of 12 August 1949 u 4461 (Yves Sandoz,
Christophe Swinarski & Bruno Zimmermann eds., 1987) [hereinafter AP COMMENTARY].
10. AP II, supra note 2, art. 13.3.
1 1 . The 1 977 Additional Protocol I defines civilians in the negative, as those individuals who
"do not belong to one of the categories of persons referred to in Article 4(A)( 1 ), (2), (3) and (6)
of the Third Convention and in Article 43 of this Protocol." The former sets forth categories of
persons entitled to prisoner of war status, whereas the latter defines the term "armed forces."
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of International Armed Conflicts art. 50. 1, June 8, 1977, 1 125 U.N.T.S. 3 [herein-
after AP I]. The drafters of Additional Protocol II originally intended to include a definition of
the term, but the proposals were dropped in order to shorten the text. See discussion in 1
Customary International Humanitarian Law 19 (Jean-Marie Henckaerts & Louise
Doswald-Beck eds., 2005) [hereinafter CIHL]. One possible distinction would be the treat-
ment of law enforcement personnel. In an international armed conflict, they are civilians
138
Michael N. Schmitt
unless incorporated into the armed forces. In a non-international armed conflict, it is con-
ceivable that they would assume the status of "fighters," who do not enjoy the same protections
under international humanitarian law as civilians.
1 2. For an excellent examination of the subject, see Jelena Pejic, Status of Armed Conflicts, in
Perspectives on the ICRC Study on Customary International Law 77 (Elizabeth
Wilmshurst & Susan Breau eds., 2007); see also GARY D. SOLIS, THE LAW OF ARMED CONFLICT
ch. 5 (2010).
13. On non-international armed conflicts generally, see ANTHONY CULLEN, THE CONCEPT
of Non- International Armed Conflict in International Humanitarian Law (2010);
Lindsay Moir, The Law of Internal Armed Conflict (2002); Eve La Haye, War Crimes
IN INTERNAL ARMED CONFLICTS (2008); Dieter Fleck, The Law of Non- International Armed Con-
flict, in The Handbook of International Humanitarian Law (Dieter Fleck ed., 2d ed.
2008); MICHAEL N. SCHMITT, CHARLES H.B. GARRAWAY & YORAM DlNSTEIN, THE MANUAL ON
the Law of Non-International Armed Conflict with Commentary \ 1.1.2 (2006) [here-
inafter NIAC Manual]; A.P.V. ROGERS, LAW ON THE BATTLEFIELD ch. 9 (2d ed. 2004); UNITED
Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict ch. 15
(2004) [hereinafter UK Manual].
14. See, e.g., the discussion in Al-Marri v. Pucciarelli, 534 F.3d 213, 233 (4th Cir. S.C. 2008);
INTERNATIONAL COMMITTEE OF THE RED CROSS, OFFICIAL STATEMENT: THE RELEVANCE OF
IHL IN THE CONTEXT OF TERRORISM 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/
siteengO.nsf/htmlall/terrorismihl-2 10705. For international armed conflict, Additional Protocol
I provides that "[m] embers of the armed forces . . . are combatants, that is to say, they have the
right to participate directly in hostilities." AP I, supra note 11, art. 43.2.
15. Of course, they may also be prosecuted for any war crimes they commit. The point is
that international law does not shield fighters from domestic prosecution for acts during a non-
international armed conflict that are "immunized" in international armed conflict. For a dis-
cussion of the distinction and its rationale, see Waldemar Solf, The Status of Combatants in
Non-International Armed Conflicts under Domestic Law and Transnational Practice, 33
American University Law Review 53, 57-61 (1983).
16. Note that the term "combatant" is occasionally used in the context of non-international
armed conflict. See, e.g., Respect for Human Rights in Armed Conflicts, G.A. Res. 2676 (XXV),
pmbl. & U 5, U.N. Doc. A/8052 (Dec. 9, 1970); Cairo Declaration, §§ 68-69, available at http://
unpan 1 .un.org/intradoc/groups/public/documents/CAFRAD/UNPAN002865.pdf, and Cairo
Plan of Action, § 82, available at http://www.iss.co.za/af/regorg/unity_to_union/pdfs/au/
afreurplan00.pdf, both adopted at the Africa-Europe Summit held under the aegis of the Organi-
zation of African Unity and the European Union, April 3-4, 2000; Rome Statute, supra note 5,
art. 8(2)(e)(ix). However, as noted in the Customary International Humanitarian Law study
commentary, "this designation is only used in its generic meaning and indicates that these per-
sons do not enjoy the protection against attack accorded to civilians, but this does not imply a
right to combatant status or prisoner-of-war status, as applicable in international armed con-
flicts." CIHL, supra note 1 1, at 12. To avoid confusion, the authors of the NIAC Manual adopted
the term "fighters" to refer to those who engaged in hostilities during a non-international armed
conflict. NIAC Manual, supra note 13, ^f 1.1.2.
17. For a study which deals extensively with the relationship between targeting and status,
see Nils Melzer, Targeted Killing in International Law (2008).
18. AP I, supra note 11, arts. 51.5(b) & 57 (international armed conflict). The rule of pro-
portionality and the requirement to take precautions in attack are generally deemed reflective
139
The Status of Opposition Fighters in a Non-International Armed Conflict
of customary law in non-international armed conflict. CIHL, supra note 11, chs. 4 & 5; NIAC
Manual, supra note 13, H 2.1.1.4 & 2.1.2.
19. The classic work on the subject is Hans-Peter Gasser, Internationalized Non-International
Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon, 33 AMERICAN
University Law Review 145 (1983).
20. This was the situation in the Nicaragua case, where the International Court of Justice
found U.S. activities against Nicaragua to be governed by the law of international armed conflict,
but held that the hostilities between the Nicaraguan armed forces and the contra rebels remained
a non-international armed conflict. Nicaragua, supra note 3, 1 219.
21. A separate issue is external control of guerrilla forces. At a certain point, sufficient con-
trol is exercised to render what would otherwise be a non-international armed conflict interna-
tional in character. On this issue, see the Tadic Appeals Judgment, which sets forth the "overall
control" test. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, J 137 (Int'l
Crim. Trib. for the Former Yugoslavia July 15, 1999). This test was adopted with approval by the
International Criminal Court Pretrial Chamber in Prosecutor v. Lubanga, Case. No. ICC-OT/04-
01/06, Decision on Confirmation of Charges, 1 211 (Jan. 29, 2007) [hereinafter Lubanga].
22. Commentary to Geneva Convention III Relative to the Treatment of
PRISONERS OF WAR 30 (Jean S. Pictet ed., I960) [hereinafter GC-III COMMENTARY];
Commentary to Geneva Convention IV Relative to the Protection of Civilian
PERSONS IN TIME OF WAR 31 (Jean S. Pictet ed., 1958) [hereinafter GC-IV COMMENTARY].
23. GC-IV COMMENTARY, supra note 22, at 31
24. GC-III Commentary, supra note 22, at 32.
25. GC-IV COMMENTARY, supra note 22, at 35. The Commentary to the Second Convention
uses the term "brigandage." COMMENTARY TO GENEVA CONVENTION II FOR THE AMELIORA-
TION of the Condition of Wounded, Sick and Shipwrecked Members of armed Forces
AT Sea 32 (Jean S. Pictet ed., 1960).
26. GC-III COMMENTARY, supra note 22, at 32.
27. See, e.g., GC-IV COMMENTARY, supra note 22, at 35, 36.
28. See, e.g., id. at 34.
29. On the Mexican case, see Carina Bergal, The Mexican Drug War: The Case for a Non-
International Armed Conflict Classification, 34 FORDHAM INTERNATIONAL LAW JOURNAL 1042
(201 1 ), although the author does not fully address the points raised herein.
30. GC-IV COMMENTARY, supra note 22, at 36.
3 1 . GC-III COMMENTARY, supra note 22, at 36.
32. See discussion in Michael N. Schmitt, Targeting Narcoinsurgents in Afghanistan: The
Limits of International Humanitarian Law, 12 YEARBOOK OF INTERNATIONAL HUMANITARIAN
Law 301 (2009).
33. Common Article 3, supra note 1.
34. Nils Melzer, International Committee of the Red Cross, Interpretive
Guidance on the Notion of Direct Participation in Hostilities under International
HUMANITARIAN LAW 32 (2009) [hereinafter IG].
35. The project involved a group of international experts convened on multiple occasions
between 2003 and 2008 to consider direct participation in hostilities by civilians; the ultimate
product reflects the views of the ICRC informed by that process. The author was a member of the
group.
36. IG, supra note 34, at 32.
37. Of course, as discussed above, in the absence of combatant immunity, attacks on mem-
bers of the armed forces can be criminalized in domestic law.
140
Michael N. Schmitt
38. AP I, supra note 1 1, arts. 48 & 51; CIHL, supra note 11, Rule 6; U.S. Navy, U.S. Marine
Corps & U.S. Coast Guard, The Commander's Handbook on the Law of Naval Operations,
NWP 1-14M/MCWP5-12.1/COMDTPUBP5800.7A,18.1 (2007).
39. The Additional Protocol II Commentary specifically references situations "where there is
a rebellion by part of the government army." AP COMMENTARY, supra note 9, ^ 4460.
40. GC III, supra note 1 , art. 4A( 1 )
41. CIHL, supra note 11, at 16-17.
42. AP I, supra note 11, art. 43.3.
43. CIHL, supra note 1 1, at 17.
44. AP COMMENTARY, supra note 9, 1 4462.
45. Resolution 1386 authorized the International Security Assistance Force to aid the in-
terim Afghan government in maintaining security. S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec.
20, 2001). There is a degree of disagreement over precisely when to mark the establishment of the
new Afghan government, such that the Taliban became an opposition force.
46. The legal issue is whether the (former) Libyan military can qualify as a dissident armed
force given the fact that its units were never part of the opposition forces, which now constitute
the State's armed forces.
47. AP II, supra note 2, art. 1.2; Rome Statute, supra note 5, arts. 8(2)(d) & 8(2)(f).
48. Tadic, supra note 5, ^j 70.
49. Rome Statute, supra note 5, art. 8(2)(f).
50. The uncertainty was acknowledged by the ICRC in the CIHL study, supra note 1 1, at 19,
and the IG, supra note 34, at 21.
51. AP II, supra note 2, art. 13.
52. On the customary law status, see, e.g., CIHL, supra note 1 1 , Rule 6; NIAC Manual, supra
note 13, ch. 2.
53. AP II, supra note 2, art. 13.2-3.
54. CIHL, supra note 1 1, at 19.
55. IG, supra note 34, at 28.
56. The court noted that "it would be odd for the drafters of Additional Protocol II to devote
a portion of the convention to protecting a discrete group of individuals labeled 'civilians' if
every member of the enemy in a non-international armed conflict is a civilian." Gherebi v.
Obama, 609 F. Supp. 2d 43, 66 (D.D.C. 2009).
57. IG, supra note 34, at 28. In this sentence, the expression "armed forces" applies to the
State's armed forces. Dissident armed forces would be included in the category of organized
armed groups.
58. This interpretation was adopted in Gherebi, supra note 56, at 65.
59. Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, U 47 (Int'l Crim. Trib. for the For-
mer Yugoslavia Dec. 5, 2003) ("For the purpose of the protection of victims of armed conflict,
the term 'civilian' is defined negatively as anyone who is not a member of the armed forces or of
an organized military group belonging to a party to the conflict."). See also Prosecutor v. Blaskic,
Case No. IT-95- 14-T, Judgment, 1 1 80 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 3, 2000)
("Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the
armed forces."); Hamlily v. Obama, 616 F. Supp. 2d 63, 73-74 (D.D.C. 2009) ("The clear impli-
cation of Part IV, then, is that Additional Protocol II recognizes a class of individuals who are
separate and apart from the 'civilian population' — i.e., members of enemy armed groups.").
60. AP COMMENTARY, supra note 9, U 4663.
61. Limaj, supra note 5, ^| 89 (emphasis added).
141
The Status of Opposition Fighters in a Non-International Armed Conflict
62. hi., citing International Committee of the Red Cross, Working Paper, June 29, 1999,
available at http://www.iccnovv.org/documents/ICRCWorkPaperArticle8Para2e.pdf (submit-
ted by the ICRC as a reference document to assist the Preparatory Commission in its work to es-
tablish the elements of crimes for the International Criminal Court) (emphasis added).
63. ItLWi 90-134.
64. /</.,«" 134.
65. See, e.g., Milosevic, supra note 5, ^fl| 16-25.
66. Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment, ^ 60 (Int'l Crim. Trib. for the
Former Yugoslavia Apr. 3, 2008), surveying Prosecutor v. Tadic, Case No. IT-94- 1 -T, Judgment
(Int'l Crim. Trib. for the Former Yugoslavia May 7, 1997); Prosecutor v. Mucic et al., Case No.
IT-96-2 1 -T, Judgment (Nov. 16, 1998); Milosevic, supra note 5; Prosecutor v. Halilovic, Case No.
IT-01-48-T, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Nov. 16, 2005); Lima], supra
note 5; Prosecutor v. Hadzihasanovic, Case No. IT-01-47-T, Judgment (Int'l Crim. Trib. for the
Former Yugoslavia Mar. 15, 2006); Prosecutor v. Mastic, Case No. IT-95-1 1-T, Judgment (Int'l
Crim. Trib. for the Former Yugoslavia June 12, 2007); Prosecutor v. Mrksic, Case No. IT-95-1 3/
1-T, Judgment (Sept. 27, 2007).
67. Kenneth H. Watkin, Opportunity Lost: Organized Armed Groups and the ICRC "Direct
Participation in Hostilities" Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLITICS 641 (2010).
68. See AP II, supra note 2, art. 1 . 1 ; AP COMMENTARY, supra note 9, H 4470. It is important to
recognize that there is no requirement that the group actually enforce compliance, but only that
it be sufficiently organized to be able to do so. Since organization is a requirement for Common
Article 3 conflicts, it is reasonable to apply it to such conflicts in addition to those meeting the AP
II thresholds.
69. A levee en masse consists of inhabitants of a non-occupied territory who rise up and
spontaneously resist invading forces without having had time to organize themselves into regu-
lar armed units. GC III, supra note 1, art. 4A(6).
70. The conflict was an international armed conflict between Georgia and Russia, although
the example is one that could apply equally in a non-international armed conflict. On the cyber
aspects of this conflict, see ENEKEN TlKK, KADRI KASKA & LlIS VlHUL, INTERNATIONAL CYBER
INCIDENTS: LEGAL CONSIDERATIONS (2010).
71. AP I, supra note 11, art. 49. On the notion of attack in the cyber context, contrast Knut
Dormann, Applicability of Additional Protocols to Computer Network Attack, paper delivered at
the International Expert Conference on Computer Network Attacks and the Applicability of In-
ternational Humanitarian Law, Stockholm, November 17-19, 2004, http://www.icrc.org/web/
eng/siteeng0.nsf/htmlall/68lg92?opendocument, with Michael N. Schmitt, Wired Warfare: Com-
puter Network Attack and Jus in Bello, 84 INTERNATIONAL REVIEW OF THE RED CROSS 365 (2002).
72. Analogously, Additional Protocol I (supra note 1 1 ), Article 43.2 categorizes "members of
the armed forces" as "combatants . . . [who] have the right to participate directly in hostilities,"
not as individuals who do so participate. The group's activities matter, not those of select
members.
73. Contrast Dormann, supra note 71, with Schmitt, supra note 71. Note that the reference
here is to an attack under the jus in bello, not an "armed attack" under the jws ad bellum.
74. IG, supra note 34, at 33.
75. See generally Michael N. Schmitt, Deconstructing Direct Participation in Hostilities: The
Constitutive Elements, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND
POLITICS 697 (2010); Nils Melzer, Keeping the Balance between Military Necessity and Humanity: A
Response to Four Critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation
142
Michael N. Schmitt
in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS
831 (2010).
76. The Interpretive Guidance provides that
[individuals who continuously accompany or support an organized armed group, but
whose function does not involve direct participation in hostilities, are not members of
that group within the meaning of IHL. Instead, they remain civilians assuming support
functions, similar to private contractors and civilian employees accompanying State
armed forces.
IG, supra note 34, at 34.
77. Mat 32-33.
78. For a discussion of the extent to which organized armed groups take on such characteris-
tics, see Watkin, supra note 67, at 674-82.
79. See CIHL, supra note 11, at 23-24. The application of the rule has been subject to
important qualifications. See, e.g., UK Statement upon Ratification, ^ (h), Jan. 28, 1998,
available at http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2
?OpenDocument (noting the obligation of a commander to protect his or her forces); UK
Manual, supra note 13, f 5.3.4. See also HARVARD PROGRAM ON HUMANITARIAN POLICY AND
Conflict Research, Commentary on the HPCR Manual on International Law
Applicable to Air and Missile Warfare, commentary to Rule 12(a) (2010).
80. See Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian
Law: Preserving the Delicate Balance, 50 VIRGINIA JOURNAL OF INTERNATIONAL LAW 795 (2010).
8 1 . IG, supra note 34, at 22.
82. Id. at 24. The position was based on the ICRC's commentary to Article 4 of the Third
Geneva Convention, which provides that "[resistance movements must be fighting on behalf of
a 'Party to the conflict' in the sense of Article 2, otherwise the provisions of Article 3 relating to
non-international conflicts are applicable, since such militias and volunteer corps are not
entitled to style themselves a 'Party to the conflict."' GC-III COMMENTARY, supra note 22, at 57.
It should be noted, though, that the drafters of the Convention saw Article 3 conflicts exclusively
in the guise of hostilities conducted against a force's own government. There is no hint that the
ICRC envisaged hostilities against the military forces of States with which the force's own gov-
ernment was fighting as a non-international armed conflict. On the contrary, the commentary is
crafted in terms of the "Party in revolt against the de jure Government," "rebellion" and "rebel
Party." Id. at 36.
83. See IG, supra note 34, at 23, which defines "belongs" by reference to the GC-III
COMMENTARY, supra note 22, at 57. This concept should not be confused with the notion of "be-
longing to" in the context of external involvement in a non-international armed conflict at a
level which internationalizes the conflict. In such cases, the issue is "overall control" of the group
(see Tadic, supra note 21), described by the International Criminal Court in Lubanga as "a role in
organising, co-ordinating, or planning the military actions of the military group." Lubanga,
supra note 21, ^[ 211.
84. An example might be armed opposition to an occupation, not in support of the govern-
ment which has been occupied, but rather in order to expel the occupiers and assume control
over the territory in question.
85. Yoram Dinstein labels these conflicts "horizontally mixed." YORAM DlNSTEIN, THE
Conduct of Hostilities under the Law of International Armed Conflict 14-15
(2004). See also Christopher Greenwood, International Law and the "War Against Terror," 78
INTERNATIONAL AFFAIRS 301, 309 (2002); Lubanga, supra note 21, ffll 210-14.
86. On overall control, see Tadic, supra note 2 1 .
143
The Status of Opposition Fighters in a Non-International Armed Conflict
87. IG, supra note 34, at 25.
88. The most significant debate was published in volume 42:3 (2010) of the New York Uni-
versity Journal of International Law and Politics.
89. IG, supra note 34, at 46.
90. See, e.g., Schmitt, supra note 75.
91. "(D]irect causation should be understood as meaning that the harm in question must be
brought about in one causal step" and "it is not sufficient that the act and its consequences be
connected through an uninterrupted causal chain of events." IG, supra note 34, at 53-54.
92. Mat 54.
93. Id. at 56. On human shields, see Michael N. Schmitt, Human Shields in International
Humanitarian Law, 47 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 292 (2009), reprinted in
38 Israel Yearbook on Human Rights 17 (2008).
94. This point was affirmed by the Israeli Supreme Court in Public Committee against Tor-
ture in Israel v. Government of Israel 1 38, HCJ 769/02, Judgment (Dec. 13, 2006), 46
International Legal Materials 373 (2007), available at http://elyon l .court.gov.il/files_eng/
02/690/007/a34/02007690.a34.pdf.
95. IG, supra note 34, at 65. The interpretation is based on AP COMMENTARY, supra note 9,
UK 1943-44, 4789.
96. See, e.g., Yoram Dinstein, Distinction and the Loss of Civilian Protection in International
Armed Conflict, in INTERNATIONAL LAW AND MILITARY OPERATIONS 183, 189-90 (Michael D.
Carsten ed., 2008) (Vol. 84, U.S. Naval War College International Law Studies), reprinted in 38
ISRAEL YEARBOOK ON HUMAN RIGHTS 1 (2008). See also Kenneth H. Watkin, Controlling the Use
of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AMERICAN
Journal of International Law l, 17 (2004).
97. IG, supra note 34, at 70.
98. With the obvious exception of those who are hors de combat.
144
VII
Present and Future Conceptions of the Status
of Government Forces in Non-International
Armed Conflict
Sean Watts*
Introduction
It seems there are two types of international lawyers — those who view apparent
legal voids as vacuums to be filled by international law and those who view legal
voids as barriers to the operation of international law. Voids, and for that matter
ambiguity, provoke different reactions from different international lawyers. How
an international lawyer or tribunal regards an apparent legal void may be, to bor-
row a poker term, one of the great international law "tells." In addition to provid-
ing doctrinal or descriptive clarity, resolutions of voids usually expose a lawyer's
level of confidence in the international legal system as well as his or her outlook on
the propriety of sovereignty-based regulation.
Disagreement over the significance of international legal voids is not merely ac-
ademic. To the contrary, debate over perceived or real legal voids between inter-
national law interpretive camps quickly brings questions of abstract legal theory
into the practical worlds of international policy and practice. Even the hardened
international-rule skeptic must see that States' conceptions of international law
translate almost directly into policy. 1 With respect to the international law of war,
* Associate Professor, Creighton University Law School; Reserve Instructor, Department of Law,
United States Military Academy.
Status of Government Forces in Non-International Armed Conflict
such interpretations can produce widespread life-or-death consequences and,
with the rebirth of international criminal law, severe criminal sanctions.
Legal voids exist and operate nowhere more clearly and widely in international
law than in the laws of war applicable to non-international armed conflicts
(NIACs), understood classically as civil wars. 2 In purely quantitative terms, the
positive law of NIAC pales in comparison to the law-of-war provisions applicable
to conflicts between States. 3 For example, the 1949 Geneva Conventions, including
their 1977 updates, contain well over five hundred substantive articles applicable
to international armed conflict (I AC) 4 yet fewer than thirty applicable to NIAC.
There is thus no small irony in the fact that the modern law of war actually traces
its beginning to a document created to regulate conduct in a civil war. 5 Yet ever
since, States have rejected invitations and proposals to level the positive legal gap
between IAC and NIAC. The result has been what some regard as glaring legal
voids regarding the latter. 6
Status of government actors in NIAC provides an intriguing and specific exam-
ple of just such a void. Whereas the protections and obligations of the law of IAC
are premised almost entirely on the status of affected persons, the law of NIAC
spurns such classifications, as well as the IAC taxonomy of status-based protection
generally. International lawyers have long regarded status of persons as largely ir-
relevant to NIAC. 7 Yet modern forms of conflict and State responses may soon
place pressure on the NIAC status void. Increasing media attention, growing inter-
national oversight and progressively heightening sensitivity to the suffering pro-
duced by NIAC conspire to match the legal protective regime of NIAC with that of
IAC, including perhaps the latter's use of status.
Status in IAC describes a number of circumstances and legal relationships (e.g.,
wounded, wounded at sea, prisoner-of-war, or civilian status). This chapter
focuses on the use of status to determine lawfulness of participation in hostilities,
or what is sometimes referred to in IAC as combatant status. 8 In particular, this
chapter explores the extent to which the international law of NIAC regulates the
status of persons who participate in hostilities on behalf of the State.
This chapter begins by addressing the descriptive question whether the interna-
tional law of NIAC speaks to government forces' status at all. An analytical section
accompanies, offering explanations of the likely influences behind the state of the
law. A predictive effort follows, addressed to the question whether the law is set-
tled or instead likely to change. This section identifies a number of pressures con-
spiring to fill the NIAC status void. An argument in favor of imposing status-like
limitations on government forces in NIAC is derived from the law-of-war principle
of distinction, and then rebutted by logical, structural and operational arguments.
The chapter concludes by addressing a series of considerations related to the chapter's
146
Sean Watts
opening generalization about international legal voids as an opportunity to reflect
more deliberately on an appropriate interpretive approach to the law of NIAC.
The International Legal Status of Government Forces in NIAC
The law of war is riddled with categories — categories of conflicts, 9 categories of
weapons, 10 categories of persons. With respect to persons, the primary byproduct
of these categories is an elaborate system of status for individuals participating, or
caught up, in armed conflict. Principled application of the law requires a deep un-
derstanding of how the law of war employs status. 11 Just as the law of war confers
status to implement its humanitarian goals, the law's denial of status often pro-
duces disappointing or even inhumane results. Frequently, the complexities and
nuances of status seem to frustrate alignment of legally correct outcomes with in-
tuitively moral or normatively desirable outcomes. A great many of the present and
past errors in the application of the law of war are attributable either to failure to
understand how status attaches and operates in armed conflict or simply to unwill-
ingness to accept the practical consequences of correct status determinations. 12
In war between States, status plays out primarily in the allocation of the
protections and obligations of the law of war. Nearly every important protection of
the law of IAC requires a predicate determination of the status of persons seeking
protection. 13 A prominent commentator observed with respect to IAC, "Every per-
son in enemy hands must have some status under international law . . . ; nobody in
enemy hands can be outside the law." 14 In most cases, protection from intentional
targeting requires the status of civilian, 15 that of wounded person 16 or, generally,
that of hors de combat. Persons qualifying for wounded or civilian status receive
protection from attack "unless and for such time as they take direct part in
hostilities." 17 To benefit from the most elaborate law-of-war treatment obliga-
tions, persons in the hands of an adversary must qualify for wounded and sick, 18
prisoner-of-war 19 or protected-person status. 20 The 1949 Geneva Convention on
Civilians includes subcategories of civilian, including the "populations of countries
in conflict," 21 "national[s] of neutral state[s]" 22 and "interned protected per-
sons." 23 The law further classifies members of the armed forces into subcategories
of combatant and non-combatant. 24
In addition to allocating protection, the law of war uses status to deny protec-
tion and treatment obligations. Designation as a spy, mercenary, or, somewhat
more controversially, an unprivileged belligerent, unlawful combatant, saboteur
or guerilla can greatly reduce or alter a person's protection or treatment under the
law of war. 25 Status has been the focus of not only operational, humanitarian and
147
Status of Government Forces in Non-International Armed Conflict
academic attention but also some of the most significant criminal litigation to en-
force the law of war. :t1
The law of NIAC, however, stands generally as an exception to law-of-war reli-
ance on status. Whereas the legal regime applicable to IAC is replete with categories
of status, no such system or taxonomy operates in the law of NIAC. The traditional
response to the question whether international law regulates status in NIAC has
been a confident no. 27 While Additional Protocol II of 1977, the most developed
treaty law applicable in NIAC, speaks in terms of a "civilian population," it offers
neither qualifying criteria nor any definition of the term "civilian." 28 Perhaps more
significantly, the Protocol offers no counterpart to civilian status such as the Addi-
tional Protocol I status of combatant. 29
To the uninitiated, the most noticeable legal void of NIAC might be the absence
of prisoner-of-war status. Along with protection of the wounded and sick,
prisoner-of-war status has long been one of the consummate law-of-war topics. 30
Few of the major law-of-war treaties addressed to the protection of victims of
armed conflict have failed to address prisoners of war. While treatment provi-
sions and living conditions of the captured garner the lion's share of popular at-
tention, the most important aspect of prisoner-of-war protection has been
immunity from prosecution for lawful hostile acts — so-called combatant immu-
nity. Combatant immunity protects most prisoners of war from prosecution by
their captors for mere participation in hostilities. 31 Thus, nearly all law-of-war
prosecutions of prisoners of war have concerned the manner in which they con-
ducted hostilities rather than the fact of their participation in war or their other-
wise lawful, warlike acts.
Fighters 32 captured in NIAC do not share the status, immunity or regime of
treatment obligations afforded to their IAC counterparts. 33 Despite development
of a separate protocol dedicated to developing humanitarian protection in NIAC,
the law of war affords no prisoner-of-war status in NIAC. 34 States' desire to avoid
attachment of status in NIAC is perhaps apparent in the Additional Protocol II label
for the captured, "[p]ersons whose liberty has been restricted." 35 This is a strained
label, even by international legal standards; it is likely States wished to avoid any
implications of status or legitimacy arising from use of a term of art to describe de-
tention in NIAC. The international law of NIAC affords captured fighters treat-
ment obligations no different from those applicable to the general, non-hostile
population. 36 Neither efforts to comply with criteria of conduct or appearance nor
any offer of reciprocal observance of the law can compel recognition of prisoner-
of-war status by a captor during NIAC. 37 Instead, opposition fighters captured in
NIAC, no matter their appearances or conduct, are likely to be regarded as mere
criminals, fully subject to the domestic penal regime of the territorial State. 38 The
148
Sean Watts
nearest comment Additional Protocol II offers on the topic of combatant immu-
nity is Article 6(5). 39 However, this provision merely charges States to "endeavor"
to grant amnesty to fighters. Amnesty is by no means an international legal obliga-
tion in NIAC. Domestic law represents the far more relevant legal source for both
treatment obligations and immunities if any arising from participation in NIAC.
The law of NIAC is nearly silent.
The NIAC status void is even more pronounced with respect to the status of
government actors in NIAC. Investigation reveals no treatment in relevant treaty
law, nor any significant international custom or usage on the topic. The well-
known criteria used to evaluate combatant status in IAC appear nowhere in the
positive law of NIAC. 40 And while some States' military manuals address NIAC,
none of those reviewed acknowledges international legal input to government
forces' status. 41 Instead, most emphasize that the existing law of NIAC has no effect
on the legal status of the parties to the conflict. 42 Finally, there is there no evidence
of internationally based prosecutions of government actors for their mere partici-
pation in NIAC or based on the nature or composition of such forces.
States thus appear to be free from international regulation of the status or
nature of government actors they employ against rebels in NIAC. Although States
have created rules regulating the conduct of their forces in NIAC, no positive in-
ternational rules limit the nature of persons or organizations governments may
employ in NIAC. Nor does the law of NIAC provide any general status for such
forces. In fact, government forces' status in NIAC generally can be said to consti-
tute one of the remaining voids of the international laws of war. Three explana-
tions for this void seem apparent: one practical, a second probable and a third
speculative but possible.
The most practical explanation may be that there has simply been little need.
Government actors involved in NIAC have not looked to international law for the
legitimacy of their participation or for their legal mandate to carry out acts that are
essentially internal or non-international in character. Actions taken to defend the
State from internal threats lie at the heart of sovereignty. Even the highly interna-
tionalized collective security system of the United Nations includes a barrier to
outside intervention in internal conflicts. 43 The nature and status of government
forces used in NIAC has been an area dominated by municipal law. Responses to
insurgency or rebellion, though typically of greater intensity than routine crime,
remain essentially law enforcement operations. 44
There are lively debates concerning domestic legal status and participation in
hostilities — none more timely and relevant than the U.S. Title 1 0— Title 50 division
of national security authority. 45 Conceptions of U.S. domestic law might well re-
strict authority to engage in combat to the armed forces as organized under Title 1
149
Status of Government Forces in Non-International Armed Conflict
of the United States Code. Although likely envisioned in extraterritorial contexts,
debate also swirls around permissible roles for private security contractors (PSCs)
in armed conflict. Episodes such as the Blackwater Nisoor Square shootings 46 and
other examples of excessive use of force by PSCs have fostered efforts to restrain
them from direct participation in hostilities. 47 Proposals to limit PSC activities ap-
pear to have gained momentum, notwithstanding the considerable economies that
have developed around that corner of the military-industrial complex. Clearly,
States may resort to domestic law to limit the activities of their agents in armed
conflict. The question remains apart, however, from whether they have resorted or
will resort to international law to do the same.
To be certain, government actors may very well find themselves called to task
for the international legality of specific conduct and means and methods used in
combat. 48 International criminal tribunals of the late twentieth and early twenty-
first centuries have developed the NIAC jus in hello through extensive cases. Yet
the legality of their mere participation in NIAC itself has not been addressed in
any forum applying international law.
A related factor contradicting indications of international legal treatment of sta-
tus may be that States have tended to use forces practically appropriate to the task,
that is, armed forces. When the activities of opposition fighters reach a scale or level
of intensity sufficient to cross the threshold from mere banditry or riot into armed
conflict, resort by the government to the armed forces of the State becomes an ob-
vious, often necessary response. Indeed, forcing the State to resort to armed forces
is often regarded as a condition precedent to classifying a situation as armed con-
flict in the first place. 49
By contrast, the prevailing view of the law of IAC seems to limit the types of
forces States may employ as direct participants in hostilities while preserving the
protections of the combatant class, most obviously prisoner-of-war status. 50 To ex-
pect prisoner-of-war status for their forces upon capture, it is generally agreed that
States must employ regular armed forces or their equivalent in direct hostilities. 51 If
this view is correct and if one extends it by custom to NIAC then it's likely the case,
as the late Louis Henkin might say, that most States are in compliance, most of the
time. 52 Thus the problem, if there is one at all, may frequently be preempted by
supposed compliance.
A second, highly probable explanation for why international law does not ex-
plicitly regulate status of government actors in NIAC concerns States' general atti-
tudes toward the relationship between international law and NIAC. States have
steadfastly resisted creating parity between the law of IAC and that of NIAC. It is
likely the absence of international law is simply a byproduct of States' general re-
luctance to commit to positive rules in NIAC. The reasons for this reluctance are by
150
Sean Watts
now well known. Fear of conferring legitimacy on rebels, concerns over failure of
reciprocal observance, 53 fear of limiting operational freedom of action and fear of
erecting obstacles to domestic prosecutions of persons who take up arms against
the State have all driven States to resist expanding the law of NIAC to match that of
IAC. States simply do not view opposition fighters in NIAC as legal equals.
Equality of status between sanctioned combatants has long been bedrock of the
international law of IAC. Indeed, equality before the law has been a distinguishing
feature of the;ws in bello, setting it apart from its law-of-war counterpart, the;ws ad
bellum. Yet no "equal application" principle operates in the present law of NIAC. 54
Indeed, States conditioned their consent to what little positive law of NIAC exists
on an explicit guarantee that legal status would form no part of the law. 55 The con-
cluding clause of Common Article 3 of the 1949 Geneva Convention provides,
"The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict." 56
The point is made again when one looks to the law of IAC. Even in its current,
highly developed state, the law of IAC does not fully regulate the status of govern-
ment forces. The concept of combatant status has ancient law-of-war roots. 57 Yet
the positive law does not directly address or commit to this area. The Third Geneva
Convention does not address combatant status, or immunity for that matter, at
all — surprising, perhaps, for a prisoner-of-war convention comprising over 130
articles.
Building on the Third Convention, Additional Protocol I of 1977 states that
combatants "have the right to participate directly in hostilities" and is likely reflec-
tive of custom. Yet this commitment represents only a partial comment on the is-
sue of combatant status. For instance, the relevant article does not affirmatively
indicate whether combatants' right to participate in hostilities is exclusive. Thus it
is unclear whether international law actually proscribes or even regulates participa-
tion in hostilities by persons not qualifying as combatants. Most law-of-war ex-
perts might posit that the right is exclusive to combatants but the soundest view is
that international law is merely silent on the matter of privilege with respect to
civilians. The matter is not committed to international law whatsoever. It is left to
State prerogative and hence to municipal law. Additional Protocol I, Article 51(3),
which merely outlines the targeting consequences of civilian participation, is the
most the law of IAC offers on the topic. 58
Commentary indicates the Additional Protocol I drafters intended to codify and
clarify international custom on the point of combatant privilege. 59 Still, experts
debate what exactly that article and the law of IAC do for combatants in terms of
authority. Some describe international law of armed conflict (LOAC) as a source of
authority to participate in hostilities — a combatant's privilege. 60 Others disagree,
151
Status of Government Forces in Non-International Armed Conflict
characterizing the article as merely immunity — insulation from prosecution —
rather than an affirmative grant of authority, a right or permission. 61 The better
phrasing may be that the article merely prohibits prosecutions rather than consti-
tutes affirmative authority or positive sanction. Notwithstanding contrary inter-
pretations by the 2009 United States Congress and the mid-twentieth-century U.S.
Supreme Court, the majority view is that the law of IAC does not concern itself
with the question of criminal consequences for mere direct participation in
hostilities. 62 The best view is that IAC regulates combatant status only as an instru-
mentality — a means to effecting other ends, such as treatment upon capture or for
purposes of contrast with persons protected from attack.
The point for purposes of this chapter is that States' apparent reluctance to com-
mit combatant status fully to international law in IAC makes the prospect that they
would do so in NIAC extremely unlikely. Nothing even approaching the partial
coverage offered by Additional Protocol I appears in Additional Protocol II. Nor
do any of the usual indicators of customary norms, such as military manuals or
statements of opinio juris, indicate any State commitment of combatant status in
NIAC to international law.
A final and possible reason for NIAC's void concerning government actor legal
status is lack of consensus. The details of how to treat NIAC have long split the
authors of international law. 63 Balancing the competing interests of humanity and
respect for sovereignty has bogged down nearly every law-of-war treaty diplomatic
conference. But this balance has been particularly elusive with respect to NIAC.
Both Common Article 3 to the 1949 Conventions and Additional Protocol II
proved to be especially contentious on topics as fundamental as the definition of
military objective. 64 Each instrument generated highly divisive factions at its re-
spective diplomatic conference. 65
For example, the 1949 Geneva Conventions diplomatic conference generated a
lengthy report on the scope of NIAC. 66 Consensus that the Conventions would
only operate in conflicts analogous to classic civil war required fifteen weeks of
work and twenty-three meetings on NIAC. 67 Later, at the diplomatic conference
that produced the 1977 Additional Protocols, the scope of covered NIAC again
proved contentious. Somewhat surprisingly, the majority of delegations appeared
more concerned with contracting LOAC rather than expanding it to cover the en-
tire range of NIAC. 68 These delegations scored a partial victory in the compara-
tively stingy application provisions of Protocol II. It is generally agreed that
Protocol II applies to a narrower class of conflicts than its 1949 counterpart, Common
Article 3. 69 Thus, while there may well be a faction of States who, given the opportu-
nity, would consent to international regulation of government forces' status in NIAC,
they seem not to have garnered sufficient support at major treaty conferences. 70
152
Sean Watts
In the final analysis it is overwhelmingly apparent that States have not made any
clear commitment of the issue of government forces' status in NIAC to interna-
tional law. Considerations including lack of necessity, general reluctance to yield
sovereignty over internal affairs and lack of consensus have all contributed to the
NIAC legal void. Yet given evolving notions of the formation of international law,
including the law of war, the staying power of this void may be in doubt.
Pressures on the Existing NIAC Framework
A host of developments call into question whether government actor status in
NIAC will remain unregulated by international law. First, if, as argued above, 71
States have previously evaded international regulation of the status of their forces
in NIAC because they have largely conformed to what some regard as limits appli-
cable in IAC, this may not hold true much longer. It seems the threats posed by
modern insurgencies and hostile non-State actors are steadily provoking more
comprehensive responses from States than previously. Leveraging technology, so-
cial media and increasingly open borders, States appear to resort to a broader spec-
trum of national power to counter today's non-State actors. Modern strategy and
tactics feature informational and economic elements of State power almost as
prominently as more traditional military and diplomatic elements in countering
current threats. 72
Although intelligence work has always played an important part in armed con-
flict, modern NIAC appears to place even greater emphasis on intelligence gather-
ing. Insurgencies and terrorist groups have frustrated many traditional intelligence
collection practices by operating as diffuse networks rather than as rigid "com-
mand and control" organizations. To counter these adaptations, national intelli-
gence assets outside the Department of Defense appear to provide not just strategic
and operational assessments but also tactical-level intelligence used in small-unit
engagements. Civilian intelligence assets appear to provide tactical operators de-
tailed, constantly updated information on enemy locations and activities far more
analogous to that provided by reconnaissance spotters and scouts than to the
templated, prepackaged and static information previously provided. 73
The involvement of intelligence community actors in the recent operation
against Osama bin Laden provoked not only questions concerning the lawfulness
of the operation but interest in the status of the various actors and agencies
involved. Reports indicate that in addition to special operations members, Cen-
tral Intelligence Agency personnel were deeply involved in preparations for and
conduct of the raid. 74 Defending the operation on PBS Newshour, the Director
of the Central Intelligence Agency explained the mission as a so-called "'title 50'
153
Status of Government Forces in Non-International Armed Conflict
operation, which is a covert operation." 75 Elaborating, the Director explained that
he commanded the mission but that "the real commander" was the Commander
of Joint Special Operations Command, a component of the armed forces. 76 Al-
though his motives for the characterization were unclear, it would not be unrea-
sonable to detect some effort to fend off allegations that civilian participation in a
military operation would have been illegal. Although agency lawyers might have
later advised him otherwise, particularly given the non-international nature of
the conflict with al-Qaeda, 77 the Director's response reveals at least intuitive or
implied concern for the impact participation in hostilities might have on the status
of his personnel.
Similar intermingling of the missions and assets of the military and civilian
intelligence communities is apparent in the growing use of aerial drones. 78 Initially
conceived as intelligence-gathering platforms, drones are now capable of carrying
out highly lethal and destructive kinetic attacks. 79 Reports indicate the U.S. armed
forces are not the sole operators of the nation's arsenal of lethal drones. 80 Intelli-
gence organizations such as the Central Intelligence Agency own and "pilot"
drones capable of attack operations, providing a compelling example of blurred
lines between intelligence activities and conduct of hostilities. Moreover, the
United States no longer holds a monopoly on lethal drone technology, if indeed it
ever held one. States such as Israel, China and France are reported to possess lethal
drones, broadening the scope of involved international actors. 81 Although perhaps
only now in its infancy, drone use has already provoked intense legal debate. The
majority of debate currently concerns authority for States to use lethal force
outside the traditional confines of battlefields. 82 Yet strains of debate concerning
the authority of non-military personnel to participate in hostilities are gaining
momentum. 83
Further intermingling of government civilian and military communities is en-
visioned in emerging mid- and postwar nation-building doctrine. An outgrowth
of admitted failures in the Iraq and Afghanistan conflicts, stability operations seek
to build government capacity either to hasten or to sustain transitions from war to
peace. 84 Stability operations emphasize "soft power" such as education, agricul-
tural, economic and humanitarian assistance to address the deeper causes of
armed conflict. Consistent with popular notions of the "three-block war," stability
operations may occur at the same time as, and very near, active hostilities. 85 In
2005, stability operations received a high-powered endorsement in the form of a
Department of Defense directive. 86 The directive instructed all U.S. commanders
to give stability operations "priority comparable to combat operations." 87 Yet the
centerpiece of military stability operations doctrine is the conviction that the
armed forces must perform only a supporting role. Stability operations envision
154
Sean Watts
heavy, often lead-agency roles for civilian governmental organizations such as the
U.S. Department of State, Department of Justice and the U.S. Agency for Interna-
tional Development. 88 While actual civilian agency participation has lagged be-
hind expectations, stability operations that intermingle civilian and military
missions, particularly in complex or dynamic security environments, seem on the
rise and likely to blur notions of participation in hostilities. 89
A final emerging field of warfare also illustrates the intermingling of agencies
provoked by modern armed conflict. States increasingly recognize cyberspace as a
critical domain of national security. 90 Few steeped in this evolving form of conflict
are unfamiliar with stories of empty legal formalism with respect to personnel in-
volved in cyber operations. Informal discussions of practices associated with State
involvement in cyber operations frequently recall stories of the uniformed service
member who clicks "Send" at the conclusion of a cyber operation otherwise pre-
pared, designed, scouted and executed exclusively by civilian personnel. Although
off-the-record and susceptible to exaggeration, no doubt, the anecdote may be in-
dicative of both the extent of civilian participation in U.S. cyber operations up to
and likely including the moment of attack, and ingrained or intuitive notions of
what constitutes lawful civilian participation in hostilities. 91
Second, as the armed conflict in Libya showed, a stronger international spot-
light shines on NIAC than previously. The legal character of the Libyan conflict is
complex. It is clear that by February 2011, hostilities rose beyond mere riot and
crossed the threshold for armed conflict, resulting in a NIAC for legal purposes. Yet
not long afterward, international intervention on behalf of the rebels in mid-
March likely converted portions of the conflict into IAC for the legal purposes of
participating States. 92 Whether the situation devolved into two separate conflicts,
an IAC between Libya and the NATO States conducting attacks on one hand, and a
NIAC between the Libyan government and the rebels on the other, is debatable. 93
The better view acknowledges each as a separate conflict, notwithstanding practi-
cal complications. Either way, media and social networking made the details of
government reactions to civil disturbances and especially the rebel armed groups
instantly public. 94 Even the academic legal community responded, producing
near-instantaneous analysis and reactions to the conflict. 95 The information age
appears to have ended the era when States could rely upon the internal nature of
NIAC to shield the nature of their responses from public attention. One wonders
whether the same can long be said with respect to international legal attention.
Third, and finally, the rise of so-called transnational armed conflict may bring
pressure on the government forces status void. "Transnational armed conflict" typi-
cally describes armed conflict between a State and non-State actors not confined to
the State's own territory. 96 U.S. operations against al-Qaeda since 2001 are often
155
Status of Government Forces in Non-International Armed Conflict
cited as an example of transnational armed conflict given their extension beyond
the sites of the original 2001 attacks to at least four continents. Although of limited
legal recognition and acceptance among law-of-war experts, transnational armed
conflicts remain related to NIAC in their likely scope of international regulation.
At present they remain, in the most important respect for purposes of conflict clas-
sification, non-international. That is, despite crossing international borders, trans-
national armed conflicts still do not pit two States directly against one another.
Yet the broader geographic and political scope of transnational armed conflicts
may render increased input from international law attractive to important interna-
tional legal personalities. Transnational armed conflict greatly strains traditional
territorial or politically based claims of exclusive sovereign prerogative on the part
of the government under attack. Classic, non-extraterritorial NIAC has relied
greatly on traditional notions of territorial sovereignty to fend off international
regulation. With their associated cross-border incursions and movements,
transnational armed conflicts unmoor NIAC from many of its traditional claims to
general freedom from international regulation. To be sure, the soundest approach
looks for such regulation from the traditional sources of international law — the
agreements and binding practices of States. But from a normative perspective,
rights of non-intervention in internal affairs 97 and insulation from international
legal meddling seem significantly weaker in transnational armed conflict.
The emerging forms of warfare showcased above reinforce the point. To return
to cyber operations, it appears nearly impossible to conduct an effective, net-
worked cyber attack within the territory of one State. 98 For instance, although of
uncertain origin, the denial of service attacks suffered by Estonia in 2007 are esti-
mated to have transited servers and networks located in as many as 178 countries. 99
Cyber attacks are likely to appear attractive to non-State actors challenging better-
resourced government opponents in NIAC. 100 Cyber warfare offers insurgents
anonymity, economy and access to destructive potential often difficult to acquire
with respect to kinetic means. 101 To the extent cyber operations can be expected as
a feature of NIAC, these conflicts will continue to involve transnational elements,
such as attacks either originating from the territory of third-party States or at least
transiting servers therein. Government responses to insurgent cyber attacks may
be less than discriminating given the difficulties of cyber attribution. One can easily
foresee false positives leading governments in NIAC to unwittingly attack assets of
neutral third-party States. The temptation to resort to international law of war to
regulate such events, to the extent they are not already regulated in the jus ad
bellum and law of State responsibility, may be great.
Ultimately, the effect of each of these phenomena of modern armed conflict —
mixing of traditional missions, increasingly available information on how States
156
Sean Watts
conduct NIAC and the enlarged geographic scope of NIAC — is likely to be height-
ened scrutiny of State responses to NIAC. If, as the prior section asserted, State re-
sponses have largely conformed to tradition, modern conflict's demand for
interagency responses will likely involve actors not traditionally associated with
direct participation in NIAC. If States could formerly rely on the fog of war and
geographic borders to obscure the details of how and with whom they carried out
military operations, the networked world will certainly make their practices and
tactics apparent and subject to scrutiny. And if the previously internal nature of
NIAC permitted States to defend claims of sovereign prerogative, the increasingly
transnational nature of NIAC will surely increase pressure to internationalize the
applicable legal regime, perhaps even with respect to status.
Re-examining Status in NIAC
The extent to which one concludes the international law of NIAC regulates the status
and composition of government forces may be a function of the level of legal gen-
erality at which one operates. As demonstrated above, the positivist claim to inter-
national regulation of the topic is weak. Certainly, no specific treaty provisions
address the subject directly. Nor does one find extensive signs of State consent to
international regulation of the topic through recitation of custom or litigation gen-
erally. Yet drawing back to the level of principles, one might find evidence to un-
dermine the voids previously described. Paired with looser interpretive practices,
such as giving tangible effect to the perceived objects and purposes of such legal
norms, a colorable case for limits on government forces in NIAC emerges. 102 This
section examines briefly the case for principle-derived international law limits on
State participation in NIAC similar to the status-based limits found in IAC.
The principle of distinction has been called "the grandfather of all principles" of
the law of armed conflict. 103 Enumerated alternately as "distinction" 104 or "dis-
crimination," 105 in both practice and custom warriors have long recognized the
principle. Distinction's first clear codification appeared in one of the founding
documents of the law of armed conflict. The U.S. Lieber Instructions, drafted in
1863, state:
[A]s civilization has advanced during the last centuries, so has likewise steadily
advanced, especially in war on land, the distinction between the private individual
belonging to a hostile country and the hostile country itself, with its men in arms. The
principle has been more and more acknowledged that the unarmed citizen is to be
spared in person, property, and honor as much as the exigencies of war will admit. 106
157
Status of Government Forces in Non-International Armed Conflict
The modern international law of armed conflict expresses the principle simi-
larly in Additional Protocol I, Article 48, titled appropriately "The Basic Rule." 107
Most frequently, distinction operates on the targeting practices of combatants,
restricting lawful attacks to legitimate military objectives and enemy combatants
and fighters. 108 Distinction forbids attacks on civilians not participating directly in
hostilities and on civilian objects. 109 The principle also forbids attacks producing
effects that cannot be contained or limited to their intended targets. 110
Beyond limiting attacks and their effects to lawful targets, distinction also com-
prises combatants' duty to distinguish themselves from civilians. Located among
the Additional Protocol I provisions related to prisoner-of-war and combatant
statuses, Article 44 requires that combatants "distinguish themselves from the civil-
ian population while they are engaged in an attack or in a military operation prepa-
ratory to an attack." 111 Historically, combatants have satisfied this aspect of
distinction by setting themselves apart from civilians both spatially and in appear-
ance. Uniforms and the practice of carrying arms openly, combined with tactics in-
volving tight formations and relatively confined battlefields, formerly made
distinction a relatively simple matter. Recognizing modern practices of militia and
other organized resistance movements in twentieth-century warfare, however, Ar-
ticle 44 permits combatants to derogate from distinguishing themselves in the tra-
ditional manner in some instances. Under Article 44, in occupied territory and
wars of national liberation, unconventional combatants need merely carry arms
openly during and in preparation for attacks. 112 Relaxing the uniform and insignia
aspects of the distinction requirement, Article 44 proved one of the most conten-
tious provisions of Protocol I. 113 Yet the general duty for participants in hostilities
to distinguish themselves clearly during combat persists.
Addressed more squarely to targeting operations than status, Additional Proto-
col I, Article 58 outlines precautions against attacks and reinforces the second as-
pect of the principle of distinction. 114 Article 58 generally requires that parties
remove or separate civilians located in their own territories from likely military
objectives. Commentary to the rule clarifies its intent also to prevent construction
of military buildings near civilian populations and objects. 115 The rule's relation-
ship to distinction lies in its facilitation of attackers' efforts to observe the princi-
ple themselves. In some sense, Article 58 responds to critiques that the targeting
provisions of Additional Protocol I focus too narrowly on attackers. 116 Law-of-war
experts have observed that in many targeting scenarios, the defender or object of
attack is better positioned to limit civilian casualties and collateral damage to civil-
ian objects. 117 Though perhaps not to the entire satisfaction of Protocol I critics,
Article 58 remedies a portion of the supposed misallocation of the distinction
burden.
158
Sean Watts
Carried to its logical conclusion, the above conception of distinction, in both
IAC and NIAC, 1 18 can be understood to carry an implicit limitation on the catego-
ries of government actors authorized to take part in hostilities. In NIAC, govern-
ment use of agencies or actors indistinguishable from the civilian population or
from government agencies not participating directly in hostilities frustrates insur-
gents' efforts to observe the principle of distinction in their attacks. For instance,
co-location of an interagency intelligence analysis cell with other civilian agency
assets not engaged in a NIAC effort might frustrate discriminate attacks on the for-
mer. More important, widespread use of personnel from civilian government
agencies to conduct hostilities in NIAC could easily induce insurgent forces to re-
gard all civilian government personnel as hostile, even those not actually taking di-
rect part in attacks.
As critics of Additional Protocol I observe, the defender, in this case the dejure
government, is usually better positioned to prevent harm to civilians. Either by
clearly identifying persons taking direct part in hostilities on behalf of the
government or by restricting such activities to members of the armed forces, the
government could greatly aid efforts to ensure discriminate attacks. Under the
proposed principle-based rule, any contrary course of action would be character-
ized as inconsistent with the principle of distinction or at least inconsistent with
its object and purpose.
Such a rule might easily translate into a status-like conception for NIAC. Al-
though NIAC generally rejects the use of status to apportion authority and protec-
tion, a distinction-derived rule limiting participation in hostilities to members of
the government armed forces might operate similarly to a status-based rule. In
practical terms, the rule would create two categories of persons in NIAC: those
whose direct participation does not frustrate the principle of distinction and those
whose direct participation in hostilities violates the principle. Such bifurcations are
entirely parallel to the status-based legal regime of IAC in important respects, lack-
ing only the familiar taxonomy of combatant and civilian.
Finally, in addition to the rule's logical connection to the most important
principle of the law of war, proponents might point to recent trends toward par-
ity between the international law of IAC and that of NIAC. The very late twentieth
and early twenty-first centuries have seen an expansion of international instru-
ments applicable in NIAC as well as extensions of existing IAC treaties into NIAC.
Major treaties expanded to cover NIAC include the 1954 Hague Cultural Property
Convention; 119 the 1980 Convention on Conventional Weapons, including its five
protocols; 120 the 1997 Ottawa Landmines Convention; 121 the 1993 Chemical
Weapons Convention; 122 and the 2008 Convention on Cluster Munitions. 123 Addi-
tionally, 118 States have ratified the Rome Statute of the International Criminal
159
Status of Government Forces in Non-International Armed Conflict
Court, which includes a highly developed article of war crimes in NIAC 124 Beyond
application of the technical provisions of these treaties, such expansions might signal
an important erosion of State hostility toward international regulation of the con-
duct of hostilities in NIAC.
In sum, attractive logical, humanitarian and even mildly positivist cases might
be made for status-like limits on government forces participating in NIAC. For
purposes of argument, this section imagines a distinction-derived rule that would,
as some consider is the case in IAC, limit direct participation in hostilities in NIAC
to armed forces or militia similarly organized and belonging to a party to the con-
flict. 125 In fact, a recent book dedicated to the topic of combatant status in NIAC as-
serts as much, arguing, "By definition, any person who participates in an internal
armed conflict who is not a member of the states' armed forces is an 'unlawful'
combatant — that is, a person who is not immunized for their warlike acts." 126 De-
spite apparent humanitarian payouts, the imagined rule runs afoul of important
structural and technical facets of the law of war. Logical, structural and practical
reasons counsel against recognition of the rule as lex lata and perhaps even as lex
ferenda.
First among logical objections, the distinction-derived rule proves too much.
The logic of the proposed rule would extend to practically absurd conclusions. For
example, the appearances of some non-military government actors in NIAC would
not frustrate the principle of distinction. Many States' domestic security forces
would appear to most observers as combatants. Few, if any, NIAC fighters could
claim to have been misled by the uniforms, armaments and even vehicles used by
such actors despite their non-military character. Yet because they are not actually
armed forces or, alternatively, not subject to a system of command and internal
discipline they would be excluded from conducting hostilities under the supposed
rule. The same might easily be said of private security contractors employed by
States in NIAC. For all the complexities PSCs have introduced to the modern bat-
tlefield, confusion with innocent civilians is not typically among them. 127
Additionally, a blanket rule limiting government conduct of hostilities in NIAC
to members of the armed forces would extend beyond situations that implicate the
appearance of the hostile actor at all. So-called over-the-horizon or non-line-of-
sight attacks seem not to provoke concern that the attacker distinguish him- or her-
self through visual means. In this respect, there is great danger that the distinction-
derived rule would operate too broadly in a logical sense. That is, application of a
rule requiring the wearing or display of distinctive insignia or uniforms applied to
over-the-horizon warfare fails to serve the rule's intended purpose of facilitating
the defender's efforts to distinguish attackers from innocent, non-hostile parties.
Limiting the conduct of attacks to members of the armed forces in such
160
Sean Watts
circumstances amounts at least to empty formalism — and at worst to absurdity —
harmful to the reputation and perceived legitimacy of the law of war.
As related above, the material field of application of a number of important in-
ternational law-of-war instruments has recently been expanded to NIAC. By their
terms, these treaties formerly regulated only IAC. Previously, their extension to
NIAC could only be achieved by proof of customary status — a technique fraught
with ambiguity and subject to vexing caveat. It may be, as previously observed, that
these expansions reflect a reduction of State hostility to international regulation of
NIAC. Yet closer examination suggests evidence of a more restrained enthusiasm
for international regulation of NIAC.
With the notable exception of the Rome Statute, each of the treaties recently ex-
panded to cover NIAC concerns means and methods of warfare. They are primar-
ily weapons treaties consistent with the Hague tradition of the law of war. 128
Weapons treaties have long been an exception to the use of status to apportion pro-
tection in IAC. In contrast to the instruments of the so-called Geneva or "respect
and protect" tradition, weapons treaties associated with the Hague tradition have
operated universally, benefiting both combatants and civilians, though typically in
a collateral sense with respect to the latter. Weapons treaties usually do not concern
interpersonal interactions or the control of individuals and have not been a source
of protected or privileged status under the law of war. None of the expanded trea-
ties introduces to NIAC a new or protected status. While certainly humanitarian
advances and arguably a boon to the prospect of international regulation of NIAC,
the recent expansions actually reflect no alternation whatsoever to the general
dearth of status-based regulation in NIAC. The larger significance of these expan-
sions may not be general State willingness to submit to international regulation of
NIAC, but rather recognition of the near-perfect alignment of concern for unnec-
essary suffering produced by certain classes of weapons in both IAC and NIAC.
By contrast, the Rome Statute's significant NIAC jurisdictional grant to the In-
ternational Criminal Court (ICC) spans both traditions of the law of war. The
NIAC-relevant portions of the Rome Statute undoubtedly represent a significant
concession to the international legal system. And other international tribunals
share the ICC's broad authority with respect to conduct in NIAC. 129 Yet the extent
to which the mandates of these tribunals reflect willingness to commit NIAC to the
international legal system should not be overstated. First, it should be remembered
that the jurisdiction of the ICC, through the principle of complementarity, takes a
backseat to domestic proceedings. 130 States willing and able to hear claims arising
from participation in NIAC in their own courts preempt ICC jurisdiction.
Complementarity stands as a powerful bar to international intrusion into NIAC.
161
Status of Government Forces in Non-International Armed Conflict
Second, the most legally significant outcomes of the decisions at the Interna-
tional Criminal Tribunal for the former Yugoslavia (ICTY) have been achieved
only through controversially broad outlooks on the scope of customary law appli-
cable to NIAC. None is better illustrative than the ICTY decision in Prosecutor v.
Tadic, in which the Appeals Chamber observed that the distinction between IAC
and NIAC had lost much of its value and weight. 131 The Tribunal's observation is
only defensible under the least rigorous conceptions of customary international
law. Applied to the nationals of minor powers, involved in unquestionably inhu-
mane conduct, the Appeals Chamber's observation attracted only minor protest.
One wonders whether applied to agents of more influential international actors,
and to less obviously atrocious circumstances, the Chamber's bold pronounce-
ment would have weathered as well.
Third, and most important, it should be understood that criminal tribunals deal
with conduct, as distinct from status. For the tribunals, status is examined solely
for the purposes of evaluating jurisdiction or determining whether charged con-
duct satisfies the elements of an enumerated offense. For instance, a tribunal vested
with jurisdiction to hear grave breaches of the Third Geneva Convention must
determine whether any alleged victims held the status of prisoner of war as under-
stood by that Convention. 132 Similarly, grave breaches of the Fourth Convention
require that purported victims be protected persons as defined by Article 4 of that
Convention. 133 Criminal tribunals do not resolve questions of status for their own
sake or for such inherently political purposes as determining the legitimacy of par-
ticipation itself. None of the tribunals has litigated status as such or at least in the
sense applied by this chapter. Despite a rich jurisprudence concerning NIAC, no
international case has examined status of any fighter with respect to lawfulness of
mere participation. Claims advancing a distinction-derived rule on government
participation in hostilities in NIAC likely confuse conduct with status.
The preceding argument illustrates a critical point, namely, the function of
status. Status is instrumental; it is an intermediary for larger, more meaningful
legal outcomes. Under the laws of war, status confers protection, treatment, obli-
gations and, in the case of combatants, a limited form of immunity from prosecu-
tion. While protection from hostilities, treatment standards upon capture and
other obligations concerning handling of captured combatants share an essen-
tially humanitarian impetus, immunity remains an end distinct from the human-
itarian status-derived ends. Immunity is quintessentially political. Immunity
from prosecution for participation in hostilities and the derivative rule limiting
the classes of persons who may claim immunity lie at the heart of sovereignty. If
status is conceived as a gateway to immunity, then it is true that in NIAC "status
is the prize for which fighting is waged." 134 The suggestion, such as that advanced
162
Sean Watts
by the distinction-derived rule on government forces in NIAC that States would
surrender the ultimate prize of revolutionary war to the international legal sys-
tem, is severely at odds with both the historical experience of NIAC, and their
clearest self-interest. In terms of logical argument, conceiving status in NIAC as a
means to lawful participation begs the question of the conflict itself. Only if status
is conceived as an instrumentality to purely humanitarian ends can it be fairly
said to operate at all with respect to government forces in NIAC.
From a still wider perspective, it is difficult to reconcile serious claims of IAC-
NIAC parity with the positivist record. 135 As emphasized above, States have consis-
tently, by compelling majorities, rebuffed invitations to drop the IAC-NIAC dis-
tinction in law-of-war treaties. 136 Even where States have consented to overlapping
norms, they have made critical caveats. The Martens clause made an early appear-
ance in the Hague Conventions and has reappeared in nearly every major law-of-
war instrument since. An eponymous homage to an influential Russian diplomat,
the clause first resolved an impasse of the treatment of resistance fighters during
belligerent occupation by referring to the common law of war and to more general
norms of humanitarian treatment. 137 Since then, the clause has served the function
in treaties of holding a place for the customary law of war, and also as a sort of re-
sidual clause for the operation of peacetime humanitarian norms.
While the clause appears in the NIAC-specific Additional Protocol II of 1977, it
bears crucial alterations to its traditional form. 138 The Protocol II iteration ex-
cludes reference to "law of nations'V'international law" and "established cus-
tom." 139 Also omitted is the traditional reference to "usages established among
civilized peoples." 140 Academic commentary to Additional Protocol II indicates
these were deliberate omissions, intended to honor States' historical reluctance to
commit NIAC to international law. 141 As is plain, each omission shares with the
others reference to the international legal system. A clearer desire to keep interna-
tional norms at bay in NIAC is difficult to conjure. That States would in the
modern period of positive law-of-war development require alterations to such a
widely accepted and fundamental precept of the law of I AC certainly bears witness
to the persistence of the IAC-NIAC divide.
To be sure, some IAC norms transpose easily to NIAC. International tribunals
and respected non-governmental and academic studies have made compelling
cases to close the substantive legal gap between the two recognized conflict types. 142
For instance, minimal treatment standards for persons in custody applicable in
IAC present few, if any, NIAC-specific obstacles to military or political necessity.
But even if many IAC norms transpose easily, status does not appear to be one of
them. Although a certain parity between treatment obligations and protections in
IAC and NIAC can be conceded, it is worth noting that status has not made the leap
163
Status of Government Forces in Non-International Armed Conflict
between two conflict types. Conferral of status, even as a humanitarian instrumen-
tality, has proved the point where State willingness to level the law of I AC and that
of NIAC ends. The issue remains of sufficient political importance to NIAC to
withstand even the considerable aforementioned pressures on the existing NIAC
status void.
Finally, and aside from descriptive debates, calls for leveling the international
law of NIAC with that of IAC fail to make the normative case that international
law is the best answer to perceived problems in NIAC. Typically claims that IAC
norms have migrated to NIAC appeal to strong humanitarian logic. How could
persons, especially victims of hostilities, be less deserving of protection simply by
virtue of conflict classification? While compelling on some levels, these claims fail
to appreciate the entire calculus of commitment of an issue to the international
legal system. Commitments to international law reflect not only normatively de-
sirable outcomes, but also the judgment of States that such outcomes are best
achieved collectively rather than independently. No single theory of international
law prescribes a comprehensive formula for such determinations. States appear to
make such determinations on an ad hoc basis, balancing multiple and dynamic
variables.
Since the late nineteenth century, States have judged international law as a good
fit for international armed conflict largely by virtue of the identities of the actors.
Coincidence of interests and guarantees of reciprocity continue to inform the in-
ternational bargains struck through treaties. By definition, the parties to NIAC up-
set the logic of this prescription. Assumptions concerning capacity and willingness
to observe internationally based legal obligations do not migrate from IAC to
NIAC as easily as rules themselves. Moreover, domestic legal systems' implementa-
tions of international law are often imperfect. Legal nuances are often lost in trans-
lation, frustrating expectations of uniformity and universality. Hard-won bargains
at diplomatic conferences may be selectively or not at all implemented. Consider-
ing the inherently internal, sovereign nature of issues in NIAC, the likelihood that
international norms would be implemented to the credit of international law legit-
imacy seems dim. Finally, modern perceptions of the laws of war themselves may
be part of the problem. Characterizations of the law of war as exclusively humani-
tarian mislead and present an incomplete picture of its true object and purpose. 143
While many of the humanitarian aspects of the law of IAC have proved well dis-
posed to migration to NIAC, the use of status generally, and particularly to appor-
tion political outcomes such as immunity, appears to be the current limit of State
willingness to submit to IAC-NIAC legal parity.
164
Sean Watts
Conclusion
As the chapter's opening assertion, a gross generalization to be sure, suggests, in-
ternational lawyers' reactions to purported voids in international law coverage
vary greatly according to interpretive preferences and general outlooks on inter-
national law. Whatever one's interpretive bent, it seems undeniable that positive
voids in international law no longer mean what they used to. Substantive gaps in
treaty coverage seem to represent neither the end of descriptive debate, nor the
beginning of the end, but only perhaps the end of the beginning of such discus-
sions. 144 In addition to the possibilities of international custom, theories accept-
ing a proliferation of "international lawmakers" now include suggestions that
non-State actors might form international law, greatly increasing the likelihood
that perceived voids will be filled to the satisfaction of interpretivist schools of
thought. 145 The signs are all around that if the NIAC status void is to remain in ef-
fect it will have to be defended rather than assumed.
With respect to the status of government forces in NIAC a distinction -derived
rule limiting government forces' participation in hostilities explored in this chapter
is more than a rhetorical straw man. Accepting evolution in NIAC, the prospect of
international regulation appears highly possible. In addition to changes in interna-
tional law interpretive theory, evolutions in State military doctrine applicable to
NIAC and increased popular attention to how NIAC is waged by States provide fer-
tile ground for transplanting IAC norms into NIAC.
Despite their shortcomings, jus in hello treaties have been highly successful at
humanizing IAC. The desire to import such success to NIAC is both laudable and
understandable. Yet voids are not in all cases invitations to interpretive gap-filling.
Voids are, as in the case of status in NIAC, often reflections of States' general out-
look on the propriety and likely efficacy of international regulation. To preserve
the legitimacy of the law of war generally, a sound and principled methodology is
needed to regulate the migration of norms from IAC to NIAC.
It maybe fair to say the jus in hello is under-theorized and thus not up to the task.
Compared to domestic legal regimes, international law generally and even its legal
sibling the jus ad helium, the law governing the conduct of hostilities lacks a delib-
erate and well-defended interpretive theory. One finds far greater attention to
compliance theory in jus ad helium than jus in hello. 146 That law-of-war specialists
haven't paid particular attention to interpretive theory is to some extent forgivable.
The pressing practicalities of its relevance, the life-and-death implications of its
operation, and the still unsorted doctrinal and descriptive challenges are enough to
occupy a career. However, in addition to the possibility of resolving a pressing
165
Status of Government Forces in Non-International Armed Conflict
doctrinal question, the NIAC status void may offer an opportunity to spark more
deliberate discussion of interpretive theory in the jus in hello.
The temptation to address voids from a purely humanitarian perspective can be
great. Yet purely moral reasoning fails to account for the current positive dispari-
ties between the law of IAC and that of NIAC. Ultimately, deliberate and principled
interpretive efforts, such as this chapter has endeavored to provide, present the
more promising course, unveiling areas of potential progress, while sustaining the
underlying logic and nature of the current international legal system.
Notes
1. Professor Hart described "rule-scepticism" as "the claim that talk of rules is a myth,
cloaking the truth that law consists simply of the decisions of courts and the prediction of them."
H.L.A. HART, THE CONCEPT OF LAW 133 (1961).
2. This article uses the term "non-international armed conflict" to describe hostilities be-
tween a State and an organized armed group not formally affiliated with a State. Significant de-
bate has developed over the scope of conflicts included in the term "NIAC." Classically,
conceptions of the regulation of such conflicts have been confined to the territory of a single
State. See Memorandum from John C. Yoo & Robert Delahunty to William J. Haynes II, General
Counsel, Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban
Detainees (Jan. 9, 2002), reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 37, 44
(Karen J. Greenberg & Joshua Dratel eds., 2005) (rejecting application of Common Article 3 of
the 1949 Geneva Conventions to cross-border conflicts with non-State actors) [hereinafter THE
TORTURE PAPERS]. Controversy notwithstanding, there is strong support for the notion that
when they adopted the term NIAC, States meant to refer only to civil wars in the classic sense. See
ANTHONY CULLEN, THE CONCEPT OF NON-INTERNATIONAL ARMED CONFLICT IN
INTERNATIONAL HUMANITARIAN LAW 41-49 (2010). Recently, scholars have called for legal rec-
ognition of a class of conflict between State actors and non-State actors that crosses international
borders, such as the United States' conflict with al-Qaeda. See Geoffrey S. Corn & Eric Talbot
Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to
the War on Terror, 81 TEMPLE LAW REVIEW 787 (2008) (advocating recognition and application
of the law of war to "transnational armed conflict").
3. The 1949 Geneva Conventions, synonymous for many with the law of war, include over
four hundred provisions addressed specifically to international armed conflict and only one ad-
dressed to non-international armed conflict. Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75
U.N.T.S. 31 [hereinafter 1949 Geneva Convention I]; Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12,
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War
art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter 1949 Geneva Convention III];
Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter 1949 Geneva Convention IV].
4. The most widely accepted treaty-based definition of international armed conflict is
found in Common Article 2 of each of the four 1949 Geneva Conventions. Additional Protocol I
to the Conventions controversially expanded the scope of material application of the Geneva
166
Sean Watts
tradition to so-called wars against "colonial domination and alien occupation and against racist
regimes " Protocol Additional to the Geneva Conventions of 1 2 August 1 949, and Relating to
the Protection of Victims of International Armed Conflicts art. 1(4), June 8, 1977, 1125
U.N.T.S. 3 [hereinafter Additional Protocol I]. States parties to Additional Protocol I have inter-
preted the phrase narrowly, however, greatly limiting the practical effect of the expansion. See
Gary D. Sous, The Law of Armed Conflict: International Humanitarian Law in War
123-25 (2010).
5. See U.S. Department of War, Instructions for the Government of Armies of the United
States in the Field, General Orders No. 100, Apr. 24, 1863 [hereinafter Lieber Code], reprinted in
THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004) [herein-
after Schindler & Toman]. Originally issued as military policy, the Instructions — or Lieber
Code, as it is now widely known — inspired States not only to codify the customs of warfare but
also to commit these rules to international, rather than domestic, law. See Jordan J. Paust, Dr.
Francis Lieber and the Lieber Code, 95 AMERICAN SOCIETY OF INTERNATIONAL LAW
PROCEEDINGS 1 12 (2001); Richard R. Baxter, The First Modern Codification of the Law of War, 3
INTERNATIONAL REVIEW OF THE RED CROSS 171 ( 1963).
6. See, e.g., Georges Abi-Saab, Non International Armed Conflicts, in INTERNATIONAL
DlMENSIONSOFHUMANITARIANLAW217,218-25 (UNESCO ed., 1988) (noting absence of pro-
visions dealing with attacks on civilians in Article 3 of the 1949 Geneva Conventions); Michael
Bothe, Article 3 and Protocol II: Case Studies of Nigeria and El Salvador, 31 AMERICAN
UNIVERSITY LAW REVIEW 899 (1982) (illustrating legal gaps through case studies and arguing
Protocol II did not go far enough toward advancing humanitarian causes in NIAC).
7. HILAIRE MCCOUBREY & NIGEL D. WHITE, INTERNATIONAL LAW AND ARMED CONFLICT
323 (1992) (observing that "[references to 'prisoner of war' status would be legally and politi-
cally inappropriate in a context of non-international armed conflict").
8. Combatant status is also used with reference to persons lawfully targetable under the law
of IAC. See Additional Protocol I, supra note 4, art. 50.
9. See 1949 Geneva Convention I, supra note 3, art. 2. So-called Common Article 2, as it ap-
pears identically in each of the four 1949 Geneva Conventions, identifies the category of conflict
to which the Conventions apply. See David E. Graham, Defining Non- International Armed Con-
flict: A Historically Difficult Task, which is Chapter III in this volume, at 43; Charles Garraway,
War and Peace: Where Is the Divide?, which is Chapter V in this volume, at 93; Geoffrey S. Corn,
Self-defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello, which is
Chapter IV in this volume, at 57.
10. See Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 U.N.T.S. 137 (identifying prohibited categories of weapons and weapons
generating additional obligations through five separate protocols, including weapons with un-
detectable fragments, mines and booby traps, incendiary weapons, blinding lasers, and explosive
remnants of war) [hereinafter Conventional Weapons Convention].
11. See Paul Kantwill & Sean Watts, Hostile Protected Persons or "Extra-Conventional Per-
sons," 28 FORDHAM INTERNATIONAL LAW JOURNAL 681 (2005).
12. See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, ffl| 164-71 (Int'l Crim.
Trib. for the Former Yugoslavia July 15, 1999) (reversing, unfortunately, a Trial Chamber's
highly informed and principled application of protected-person status under the Fourth Geneva
Convention) [hereinafter Prosecutor v. Tadic].
167
Status of Government Forces in Non-International Armed Conflict
13. The most significant exception to the status-dependent international law of war is the
category of rules limiting weapons and means of warfare, the so-called Hague tradition. See infra
text accompanying note 128.
14. Commentary IV Geneva Convention Relative to the Protection of Civilian
PERSONS IN TIME OF WAR 51 (Jean S. Pictet ed., 1958) [hereinafter GENEVA CONVENTION IV
Commentary].
15. See Additional Protocol I, supra note 4, arts. 48-71.
16. See 1949 Geneva Convention I, supra note 3, arts. 12-13 (outlining, respectively,
protections owed to the wounded and qualification criteria for the status of wounded).
17. Additional Protocol I, supra note 4, art. 51(3). A recent symposium offers a helpful
cross-section of views on the meaning of this phrase. Forum, Direct Participation in Hostilities:
Perspectives on the ICRC Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLITICS 637 (2010). Article 13 of Additional Protocol II applicable
to NIAC replicates Article 51(3), although without an accompanying definition of the term
"[civilians." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts art. 5, June 8, 1977, 1125
U.N.T.S. 609 [hereinafter Additional Protocol II].
18. See 1949 Geneva Convention I, supra note 3, art. 13.
19. See 1949 Geneva Convention III, supra note 3, art. 4. See also YORAM DlNSTEIN, THE
Conduct of Hostilities under the Law of International armed Conflict 39-51 (2d
ed. 20 10) (providing a clear application of the prisoner-of-war qualification criteria); Memoran-
dum from Alberto R. Gonzales, Counsel to the President, Office of Counsel to the President, to
George W. Bush, President of the United States, Decision re Application of the Geneva Conven-
tion on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan. 25, 2002), reprinted
in THE TORTURE PAPERS, supra note 2, at 118, 121 (offering a controversial application of the
prisoner-of-war criteria). Reinforcing the importance of prisoner-of-war status, the Third
Geneva Convention requires detaining powers convene "competent tribunals" to determine the
proper status of detainees potentially eligible for protection under the Convention. See 1949
Geneva Convention III, supra, art. 55.
20. See 1949 Geneva Convention IV, supra note 3, art. 4. See also Derek Jinks, The Declining
Significance ofP.O.W. Status, 45 HARVARD INTERNATIONAL LAW JOURNAL 367 (2004) (explain-
ing the nature of the Fourth Convention's protective regime); Knut Dormann, The Legal Situa-
tion of "Unlawful/Unprivileged Combatants," 85 INTERNATIONAL REVIEW OF THE RED CROSS 45
(2003) (explaining clearly the application of qualifying criteria for Fourth Convention protected
persons status).
21. 1949 Geneva Convention IV, supra note 3, art. 13. The "whole of the populations of the
countries in conflict" receives the protections of Part II of the Fourth Convention. Id. Part II pro-
tects access to medical treatment as well as shelter from the effects of hostilities through hospital
and safety zones. Id., arts. 14-26.
22. Id., art. 4. The Fourth Convention leaves protection of nationals of neutral States largely
to the diplomatic system. See GENEVA CONVENTION IV COMMENTARY, supra note 14, at 48.
23. 1949 Geneva Convention IV, supra note 3, arts. 78-79. The Fourth Convention pre-
scribes a detailed regime of treatment obligations for interned protected persons in Part IV. Id.,
arts. 79-141.
24. Regulations Respecting the Laws and Customs of War on Land art. 3, annexed to Con-
vention No. IV Respecting the Laws and Customs of War on Land, Oct. 1 8, 1 907, 36 Stat. 2277, 1
Bevans 631 (distinguishing, within the armed forces, combatants from non-combatants such as
chaplains and medical personnel) [hereinafter 1907 Hague Convention IV].
168
Sean Watts
25. See Additional Protocol I, supra note 4, arts. 46-47; Richard R. Baxter, So-Called
"Unprivileged Belligerency": Spies, Guerrillas, and Saboteurs, 28 BRITISH YEARBOOK OF
INTERNATIONAL Law 323 (1951). The status of unprivileged belligerent or unlawful combatant
has provoked significant legal debate. A strong textual case can be made that no such separate,
treaty-based status exists. See Mark Maxwell & Sean Watts, Unlawful Enemy Combatant: Status,
Theory of Culpability, or Neither?, JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 19 (2007)
(concluding U.S. use of the term "unlawful enemy combatant" reflects legal convenience more
than objective assessment of the existing laws and customs of war); Dormann, supra note 20, at
46-47 (emphasizing that neither term appears in the 1949 Geneva Conventions). But see
DlNSTEIN, supra note 19, at 33-36 (defending, in one of the most respected texts on the jus in
bello, recognition of the class of unlawful combatant).
26. See, e.g., Prosecutor v. Tadic, supra note 12, fflf 164-69 (announcing surprising legal find-
ings on Fourth Geneva Convention protected-person status).
27. See UNITED KINGDOM MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED
CONFLICT 1f 15.6.1 (2004) (stating, "The law relating to internal armed conflict does not deal spe-
cifically with combatant status or membership of the armed forces") [hereinafter UK LOAC
MANUAL]; SOLIS, supra note 4, at 191 (observing, "[T]here are no 'combatants,' lawful or other-
wise, in Common Article 3 conflicts").
28. Additional Protocol II, supra note 17, art. 5.
29. See Additional Protocol I, supra note 4 , art. 43(2) (stating, "Members of the armed
forces of a Party to a conflict ... are combatants, that is to say, they have the right to participate
directly in hostilities") (parenthetical omitted).
30. Codified protection of prisoners and the status of prisoner of war date back to some
of the earliest multilateral law-of-war instruments. See Lieber Code, supra note 5, arts. 53-
56; Project of an International Declaration concerning the Laws and Customs
OF WAR arts. 23-34 (Aug. 27, 1874), available at http://www.icrc.org/ihl.nsf/INTRO/135
?OpenDocument; Institute of International Law, Oxford Manual 1880: The Laws of War on Land,
reprinted in Schindler & Toman, supra note 5, at 29, arts. 61-72; Hague Convention (II) Respect-
ing the Laws and Customs of War on Land with Annex of Regulations arts. 4—20, July 29, 1899,
32 Stat. 1803, 1 Bevans 247 [hereinafter 1899 Hague Convention II].
3 1 . Not all prisoners of war enjoy combatant immunity. For instance, while "war correspon-
dents, supply contractors, and members of labor units" who accompany the armed forces qualify
for prisoner-of-war status, few if any detaining powers would be likely to afford combatant im-
munity in the event they took a direct part in hostilities. 1949 Geneva Convention III, supra note
3, art. 4.A(4). This view accords with the inclusion of these groups in the law-of-war definition of
civilian. See Additional Protocol I, supra note 4, art. 50.
32. Writers have adopted the term "fighters" to describe persons taking direct part in NIAC
hostilities, whether government or rebel. See, e.g., MICHAEL N. SCHMITT, CHARLES H.B.
GARRAWAY & YORAM DlNSTEIN, THE MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED
Conflict with Commentary if 1.1.2 (2006) [hereinafter NIAC Manual]; I Customary
International Humanitarian Law rule 6 (Jean-Marie Henckaerts & Louise Doswald-Beck
eds., 2005) (omitting entirely reference to non-international armed conflict in rules governing
"Combatants and Prisoners-of-War") [hereinafter CUSTOMARY INTERNATIONAL HUMANI-
TARIAN Law].
33. See NIAC MANUAL, supra note 32, 1J 3.6 (outlining minimal protections afforded to
"[p]ersons whose liberty has been restricted"); UK LOAC MANUAL, supra note 27, 1j 15.6.3; Mi-
chael N. Schmitt, The Status of Opposition Fighters in a Non-International Armed Conflict, which
is Chapter VI in this volume, at 119.
169
Status of Government Forces in Non-International Armed Conflict
34. See UK LOAC MANUAL, supra note 27, ffll 15.34-15.56 (reviewing rules added to the law
of NIAC by Protocol II without mention of prisoner-of-war status).
35. Additional Protocol II, supra note 17, art. 5. Article 6 echoes this reluctance, referring to
"those deprived of their liberty for reasons related to the armed conflict." Id., art. 6.
36. See 1949 Geneva Convention III, supra note 3, art. 3; Additional Protocol II, supra note
17, art. 5. An increasing number of international lawyers view international human rights law
(IHRL) as applicable or at least complementary to the law of war. See RENE PROVOST,
INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW (2002); Franocise J. Hampson, The
Relationship between International Humanitarian Law and Human Rights Law from the Perspec-
tive of a Human Rights Treaty Body, 90 INTERNATIONAL REVIEW OF THE RED CROSS 549 (2008);
Cordula Droege, Elective Affinities? Human Rights and Humanitarian Law, 90 INTERNATIONAL
REVIEW OF THE RED CROSS 501 (2008); Dietrich Schindler, Human Rights and Humanitarian
Law, 31 AMERICAN UNIVERSITY LAW REVIEW 935 (1982). Particularly given the territorial
nature of NIAC, many would regard IHRL as a source of treatment obligations in NIAC. None-
theless, this chapter focuses exclusively on protections derived from the law of war.
37. By comparison, in IAC armed groups not part of States' regular armed forces can gain
prisoner-of-war status for their members by complying with criteria enumerated in the Third
Geneva Convention: belonging to a party, submitting to a command hierarchy, bearing arms
openly, wearing distinctive insignia and observing the laws of war. See 1949 Geneva Convention
III, supra note 3, art. 4.A(2).
38. See EVE LA HAYE, WAR CRIMES IN INTERNAL ARMED CONFLICTS ch. 5, 256-70 (2008)
(outlining domestic prosecutions arising from NIACs); NIAC MANUAL, supra note 32, ^ 3.7
(outlining due process obligations applicable to domestic prosecution for "crime[s] related to
the hostilities"); THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 1J 1202.3 (Dieter
Fleck ed., 2008) (noting States' interest in prosecution of insurgents' acts of murder and destruc-
tion in NIAC) [hereinafter HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW].
39. Additional Protocol II, supra note 17, art. 6(5). Commentary interprets the clause as in-
tended to promote general reconciliation rather than to recognize or effectuate any right to im-
munity or amnesty held by captured fighters. COMMENTARY ON THE ADDITIONAL PROTOCOLS
OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 1402 (Yves Sandoz,
Christophe Swinarski & Bruno Zimmermann eds., 1987) [hereinafter COMMENTARY ON THE
Additional Protocols].
40. The most widely applicable standard for combatant status is found among select provi-
sions of the Third Geneva Convention's categories of prisoner of war. In an ironic twist, the
LOAC definition of civilian identifies four categories of prisoner of war as constituting the com-
batant class in IAC. See Additional Protocol I, supra note 4, art. 50. For its States parties, Addi-
tional Protocol I refines in Articles 43 and 44 the criteria for combatant status. Combatant status
under Protocol I is commonly understood to require only affiliation with an armed force or
group which employs a system of discipline enforcing compliance with LOAC and carrying
one's arms openly in attack. See id. The Protocol's elimination of the criterion of distinctive in-
signia or a uniform has been widely criticized. See Douglas Feith, Law in the Service of Terror —
The Strange Case of Additional Protocol I, 1 THE NATIONAL INTEREST 36 (1985); Guy B. Roberts,
The New Rules for Waging War: The Case Against Ratification of Additional Protocol I, 26
VIRGINIA JOURNAL OF INTERNATIONAL Law 109 (1985); Abraham Sofaer, Terrorism and the
Law, 64 FOREIGN AFFAIRS 901 (1986). Although a persistent objector to some of Additional Pro-
tocol I, the United States regards significant portions of the Protocol as reflective of customary
law. See Memorandum from W. Hayes Parks et al. to Mr. John H. McNeill, Assistant General
Counsel, Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions:
170
Sean Watts
Customary International Law Implications (May 9, 1986), reprinted in THE JUDGE ADVOCATE
General's Legal Center & School, Law of War Documentary Supplement 388, 389
(Sean Watts ed., 2006); Michael J. Matheson, Remarks in Session One: The United States Position
on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLICY 419, 425
(1987).
4 1 . UK LOAC MANUAL, supra note 27, ch. 1 5; OFFICE OF THE JUDGE ADVOCATE GENERAL,
Chief of Defence Staff, Joint Doctrine Manual, Law of Armed Conflict at the
Operational and Tactical Levels ch. 17 (2001) [hereinafter Canadian LOAC Manual].
The German law of armed conflict manual does not treat NIAC in detail. See FEDERAL MINISTRY
of Defence, Federal Republic of Germany, Humanitares VOlkerrecht in bewaffneten
KONFLIKTEN- HANDBUCH^ 2 10-1 1 ( 1992). The manual simply instructs German armed forces
to apply "fundamental humanitarian provisions of international law embodied in the four
1949 Geneva Conventions (Common Art. 3), the 1954 Cultural Property Convention (Art. 19)
and the 1977 Additional Protocol II" to NIAC. Id., H 21 1. Comments by a prominent German
legal expert note that the International Criminal Tribunal for the former Yugoslavia inter-
preted this paragraph as a statement equating the law of I AC and NIAC. Wolff Heintschel von
Heinegg, The German Manual, in INTERNATIONAL PEACE RESEARCH INSTITUTE, FORUM FOR
International Criminal and Humanitarian Law, National Military Manuals on the
Law of Armed Conflict 1 12 (Nobuo Hayashi ed., 2d ed. 2010), available at http://
www.fichl.org/publication-series (citing International Criminal Tribunal for the former Yugo-
slavia, Tadic Jurisdiction Decision 1j 1 1 8). The UK Manual on the Law of Armed Conflict includes an
interesting historical notation regarding French practice in Algeria. While French forces
unsurprisingly tried and executed Algerian rebels without according prisoner-of-war status, the
French also expected opposition fighters to accord prisoner-of-war status to captured French
soldiers. UK LOAC MANUAL, supra, ^ 15.4.1 n. 21. The current U.S. law-of-war manual includes
only a single paragraph on "civil war," the bulk of which merely reprints Common Article 3 of
the 1949 Geneva Conventions. Department of the Army, FM 27-10, The Law of Land Warfare
U 11 (1956). A closely held draft of a new U.S. manual is currently under review by executive
branch agencies.
42. UK LOAC MANUAL, supra note 27, J 15.6.1; CANADIAN LOAC MANUAL, supra note 41,
f 1706.1.
43. U.N. Charter art. 2(7). Article 2(7) states, "Nothing in the present Charter shall autho-
rize the United Nations to intervene in matters which are essentially within the domestic juris-
diction of any state. . . ." Id.
44. See UK LOAC MANUAL, supra note 27, U 15.6.1.
45. A prominent law-of-war handbook asserts, "All states have legal frameworks which priv-
ilege their own police and armed forces as against insurgents who oppose them." HANDBOOK OF
INTERNATIONAL HUMANITARIAN LAW, supra note 38, U 1202.2. Title 10 of the United States
Code provides legal authority for and organizes the U.S. armed forces. Title 50 organizes em-
ployees of U.S. federal intelligence agencies. Recent operations, particularly those carried out
against global terrorist networks, have blurred the lines of authority between Title 1 and Title 50
agencies. Debate has also developed over other agencies' participation in national security activi-
ties, such as the U.S. Drug Enforcement Agency's work in counterterrorism operations. See
Johnny Dwyer, The DEA's Terrorist Hunters: Overreaching Their Authority?, TlME.COM (Aug. 8,
2011),http://www.time.com/time/world/article/0,8599,2087220,00.html.
46. See James Glanz & Alissa J. Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths,
New York Times, Oct. 3, 2007 at Ai.
171
Status of Government Forces in Non-International Armed Conflict
47. See Moshe Schwartz, Congressional Research Service, The Department of Defense's Use of
Private Security Contractors in Afghanistan and Iraq: Background, Analysis, and Options for Con-
gress (2011).
48. Several international criminal tribunals wield jurisdiction over the conduct of NIAC. See
e.g., Rome Statute of the International Criminal Court art. 8(2)(c)-(f), July 17, 1998, 2187
U.N.T.S. 90 (amended Jan. 16, 2002) [hereinafter Rome Statute].
49. See GENEVA CONVENTION IV COMMENTARY, supra note 14, at 35.
50. See J. Ricou Heaton, Civilians at War: Reexamining the Status of Civilians Accompanying
the Armed Forces, 57 AIR FORCE LAW REVIEW 155 (2005); Michael N. Schmitt, Wired Warfare:
Computer Network Attack and the Jus in Bello, in COMPUTER NETWORK ATTACK AND
INTERNATIONAL LAW 187, 198 (Michael N. Schmitt & Brian T. O'Donnell eds., 2002) (Vol. 76,
U.S. Naval War College International Law Studies). But see Sean Watts, Combatant Status and
Computer Network Attack, 50 VIRGINIA JOURNAL OF INTERNATIONAL LAW 392 (2009) (arguing
that perceived limits on types of persons and agencies States may employ in computer network
attack are overstated).
51. See W. Hays Parks, Special Forces' Wear of Non-Standard Uniforms, 4 CHICAGO JOURNAL
OF INTERNATIONAL LAW 493, 508-1 1 (2003) (discussing the criteria for prisoner-of-war status
and distinguishing entitlement to or loss of status from criminality).
52. LOUIS HENKIN, HOW NATIONS BEHAVE 253 (1968) (observing that "most states obey
most law most of the time").
53. See Sean Watts, Reciprocity and the Law of War, 50 HARVARD INTERNATIONAL LAW
JOURNAL 365 (2009).
54. Adam Roberts, The Equal Application of the Laws of War: A Principle under Pressure, 90
INTERNATIONAL REVIEW OF THE RED CROSS 931 (2008).
55. See GENEVA CONVENTION IV COMMENTARY, supra note 14, at 6-7. Jean Pictet observes,
"Without [the guarantee] neither Article 3, nor any other Article in its place, would ever have
been adopted." Id. at 44.
56. See 1949 Geneva Convention IV, supra note 3, art. 3.
57. See Waldemar Solf, The Status of Combatants in Non- International Armed Conflicts un-
der Domestic Law and Transnational Practice, 33 AMERICAN UNIVERSITY LAW REVIEW 53, 57-58
(1983) (tracing recognition of combatant status to Belli, Grotius, Pufendorf and Vattel).
58. Additional Protocol I, supra note 4, art. 51(3). Article 51(3) states, "Civilians shall enjoy
the protection afforded by this section, unless and for such time as they take a direct part in
hostilities."
59. Commentary on the Additional Protocols, supra note 39, at 514.
60. See DlNSTEIN, supra note 19, at 33 (noting lawful combatants' "license to kill").
61. Early commentators viewed skeptically claims that international law could authorize or
"give positive sanction to" States to do anything. 2 JOHN WESTLAKE, INTERNATIONAL LAW 52
(1907) (explaining that rules of war "are always restrictive, never permissive"). See also Roberts,
supra note 54, at 935 (rejecting that international law grants belligerents the "right" to participate
in hostilities); Baxter, supra note 25, at 323-324 (arguing, with characteristic prescience, a simi-
lar point prior to the codification of Additional Protocol I).
62. Ex parte Quirin, 317 U.S. 1, 30-31 (1942) (finding in international laws of war
support for the concept of unlawful combatancy); Military Commissions Act of 2009, 10
U.S.C. § 950t( 15) (2009) (defining, for purposes of U.S. military commissions, the crime of
murder in violation of the law of war, including the otherwise lawful killing of a "privileged
belligerent").
172
Sean Watts
63. See George J. Andreopoulos, The Age of National Liberation Movements, in THE LAWS
of War: Constraints on Warfare in the Western World 191 (Michael Howard, George
J. Andreopoulos & Mark R. Shulman eds., 1994). Andreopoulos observes, "The overt
politicization of the symbols of recognition, whether dealing with rebellion, insurgency, or
belligerency, led to the disappearance of the concern with correlating status with facts. . . ." Id.
at 193.
64. On June 6, 1977, the fifty-second plenary meeting of States rejected a committee pro-
posal to include reference to, and definitions of, military objectives into what became Article 13
of Protocol II. IV Official Records of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law Applicable in
ARMED CONFLICTS, GENEVA 1974-1977, at 71 (1978). Consequently, Additional Protocol II in-
cludes no provision on military objective.
65. See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, at
9-15 (William S. Hein & Co. 2004) (1949) [hereinafter 1949 GENEVA CONFERENCE FINAL
Record]; VII Official Records of the Diplomatic Conference on the Reaffirmation
and Development of International Humanitarian Law Applicable in Armed
CONFLICTS, GENEVA 1974-1977, at 60-65 (1978) (summarizing States' divergent views on the
scope of draft Protocol II expressed in Plenary Session).
66. II-B 1949 Geneva Conference Final Record, supra note 65, at 129.
67. CULLEN, supra note 2, at 41-42.
68. Mat 98, 101.
69. See COMMENTARY ON THE ADDITIONAL PROTOCOLS, supra note 39, at 1 350 (noting that
the material application of Protocol II does not affect that of Common Article 3). The Protocol's
requirement that opposition groups control territory and its exclusion of conflicts solely be-
tween such groups excludes armed conflicts that Common Article 3 would cover. Additional
Protocol II, supra note 17, art. 1.
70. At the diplomatic conference that produced the Additional Protocols, Norway failed in
its attempt to persuade States to drop the distinction between IAC and NIAC. See Hans Peter
Gasser, International Non-International Armed Conflicts: Case Studies of Afghanistan, Kampu-
chea, and Lebanon, 31 AMERICAN UNIVERSITY LAW REVIEW 911, 912 (1982) (citing 5
Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law applicable in Armed Conflicts, Official Records, Summary
Record 91-99 CDDH/SR.10 (1978)).
7 1 . See discussion supported by notes 49-52.
72. HEADQUARTERS, DEPARTMENT OF THE ARMY & HEADQUARTERS, MARINE CORPS
Combat Development Command, FM 3-24/MCWP 3-33.5, Counterinsurgency i 1-2
(2006). The Field Manual notes, "Counterinsurgency is military, paramilitary, political, eco-
nomic, psychological, and civic actions taken by a government to defeat insurgency" (citing Joint
Chiefs of Staff, Joint Publication 1-02, Department of Defense Dictionary of Military and Associ-
ated Terms 82 (Aug. 15, 201 1)) (emphasis in original).
73. See Nicholas Schmidle, Getting Bin Laden, NEWYORKER.COM (Aug. 8, 2011), http://
www.newyorker.com/reporting/20 1 1 /08/08/ 1 1 0808fa_fact_schmidle?currentPage=all.
74. See id.
75. CIA Chief Panetta: Obama Made "Gutsy" Decision on Bin Laden Raid, PBS NEWSHOUR,
May 3, 2011, http://www.pbs.org/newshour/bb/terrorism/jan-junel l/panetta_05-03.html.
76. Id.
173
Status of Government Forces in Non-International Armed Conflict
77. See Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (2006) (holding that U.S. operations
against al-Qaeda constituted NIAC for purposes of application of Common Article 3 of the 1949
Geneva Conventions).
78. Scott Shane, C.I.A. Is Disputed on Civilian Toll in Drone Strikes, NEW YORK TIMES, Aug.
12, 2011, at Al, available at http://www.nytimes.com/2011/08/12/world/asia/12drones.html
?_r= 1 &pagewanted=print (relating U.S. rebuttals to allegations of widespread civilian casualties
in CIA drone strikes in Pakistan); Charli Carpenter & Lina Shaikhouni, Don't Fear the Reaper,
FOREIGN POLICY (June 7, 201 1), http://www.foreignpolicy.com/articles/2011/06/07/dont_fear
_the_reaper (noting that a CIA-led drone attack in Pakistan "arguably violates the rules on law-
ful combat in the Geneva Conventions").
79. Peter Bergen & Katherine Tiedemann, The Year of the Drone: An Analysis of U.S. Drone
Strikes in Pakistan, 2004-2010, NEW AMERICA FOUNDATION (Feb. 24, 2010), http://
counterterrorism.newamerica.net/sites/newamerica.net/files/policydocs/bergentiedemann2.pdf.
80. See Schmidle, supra note 73 (relating President Barack Obama's expansion of the CIA.'s
classified drone program); Charlie Savage, U.N. Official Set to Ask U.S. to End C.I.A. Drone
Strikes, NYTlMES.COM (May 27, 2010), http://www.nytimes.com/2010/05/28/world/asia/
28drones.html.
81. J.R. Wilson, UAVs: A Worldwide Roundup, More and More Countries Are Developing or
Cooperating on UAVs as Their Numbers and Versatility Grow, AEROSPACE AMERICA (June 2003),
available at http://www.aiaa.org/aerospace/Article. cfm?issuetocid=365. Israel used UAVs in the
2006 conflict in Lebanon. See Larry Dickerson, New Respect for UAVs, AVIATION WEEK & SPACE
TECHNOLOGY, Jan. 26, 2009, at 94. UAVs were also used in 2008 between Russia and Georgia in
the South Ossetia region. Id.
82. See Amitai Etzioni, Unmanned Aircraft Systems: The Moral and Legal Case, JOINT FORCE
QUARTERLY, May 2010, at 66, available at http://www.ndu.edu/press/lib/images/jfq-57/
etzioni.pdf; Kenneth Anderson, Predators over Pakistan, THE WEEKLY STANDARD, Mar. 8, 2010,
at 24 (defending the Obama administration's global use of CIA. and military drone strikes
against terrorists); Mary Ellen O'Connell, Flying Blind: U.S. Combat Drones Operate Outside In-
ternational Law, AMERICA (Mar. 15, 2010), http://www.americamagazine.org/content/article
.cfm?article_id=12179.
83. See Savage, supra note 80 (noting that Philip Alston as United Nations author of a report
on U.S. drone practices agreed that it is "not per se illegal" for CIA. operatives to fire drone mis-
siles); Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,
Study on Targeted Killings, Iffl 70-71, Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6
(May 28, 2010) (by Philip Alston), available afwww2.ohchr.org/english/bodies/hrcouncil/docs/
14sessionAA.HRC.14.24.Add6.pdf (noting illegality of civilian participation in hostilities is not
addressed by IHL, merely consequences for purposes of targeting and lack of immunity). Matt
Cover, House Committee Questions Legality of Drone Strikes against Terrorists, CNS NEWS (Apr.
28, 2010), http://www.cnsnews.com/node/64916 (featuring statements by Professor O'Connell
that a drone strike is only legal when used by military personnel in a combat situation where
there is an ongoing armed conflict in which the United States is engaged and Professor Glazier, in
contrast, stating that the "United States was engaged in an armed conflict with al Qaeda terrorists
around the world" and "international legal principles . . . justified the use of drones to kill terror-
ists in Afghanistan, Iraq and beyond").
84. Department of the army, FM 3-07, Stability Operations m 1-11-1-13 (2008)
[hereinafter FM 3-07 STABILITY OPERATIONS].
85. General Charles Krulak coined the term "three-block war" to describe complex conflicts
calling on armed forces to perform a range of missions simultaneously. General Charles C. Krulak,
174
Sean Watts
The Strategic Corporal: Leadership in the Three Block War, MARINES MAGAZINE, Jan. 1999, at
28. Krulak imagined soldiers in a single urban area engaged in high-intensity combat on one
block, conducting humanitarian operations on the next, and separating warring factions on a
third. Id.
86. Department of Defense, DoD Directive 3000.05, Military Support for Stability, Security,
Transition, and Reconstruction (SSTR) Operations (2005).
87. Id.
88. FM 3-07 Stability Operations, supra note 84, app. A.
89. See NATHAN HODGE, ARMED HUMANITARIANS (2011) (describing recent U.S. experi-
ence with nation-building and challenges faced by military leaders adapting to the new mission
set).
90. DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE STRATEGY FOR OPERATING IN
CYBERSPACE 5 (201 1 ). The Strategy identifies "treating] cyberspace as an operational domain to
organize, train, and equip so that DoD can take full advantage of cyberspace's potential." Id. See
also Department of Defense, Quadrennial Defense Review 37 (2010) (which observes,
"Although it is a man-made domain, cyberspace is now as relevant a domain for DoD activities
as the naturally occurring domains of land, sea, air, and space"); SECRETARY OF STATE FOR THE
Home Department, CONTEST: The United Kingdom's Strategy for Countering
TERRORISM 41 (201 1) (predicting increases in terrorists' use of cyber attack and directing
counterterrorism assets to integrate responses into planning).
91. The extent and nature of civilian participation in cyber operations, including attack, are
difficult to discern. States guard their cyber practices and capabilities closely. Some reliable indi-
cations exist, however, that support the conclusion that the United States uses civilians in aspects
of cyber operations approaching or even constituting attack. See Watts, supra note 50, at 407-10
(concluding from public statements and executive branch budget requests that civilians likely
play significant roles in U.S. cyber operations).
92. See Hadeel al-Shalchi & Ryan Lucas, Qaddafi Defiant in the Face of Allied Strikes, THE
CHRISTIAN SCIENCE MONITOR (Mar. 19, 201 1), http://www.csmonitor.com/World/Middle
-East/201 1/031 9/Qaddafi-defiant-in-the-face-of- allied-strikes; Hadeel al-Shalchi & Ryan Lucas,
Allies Pound Libya, CHICAGO SUN-TIMES, Mar. 20, 201 1, at 3 (relating British, French and U.S.
strikes against government forces in Libya).
93. Authors have written on the topic of conflict characterization and conflict parsing in
particular. See Carina Bergal, The Mexican Drug War: The Case for Non- International Armed
Conflict Classification, 34 FORDHAM INTERNATIONAL LAW JOURNAL 1042 (2011); Corn &
Jensen, supra, note 2.
94. See Paul Schemm 8c Zeina Karam, Gadhafi Drives Rebels from One of Last Strongholds,
CHICAGO SUN-TIMES, Mar. 14, 2011, at 16; Donald Macintyre, Gaddafi's Iron Fist Wont Help
Him Keep a Grip on a Divided Nation, THE INDEPENDENT, Mar. 12, 201 1, at 24; Paul Schemm 8c
Maggie Michael, Gadhafi Escalates War on Rebels, CHICAGO SUN-TIMES, Mar. 7, 201 1, at 4; David
D. Kirkpatrick 8c Kareem Fahim, Khadafy Forces Hit Key City, Lose Port; Residents Describe Mas-
sacre by Army, BOSTON GLOBE, Mar. 6, 20 1 1 , at 1 ; Leila Fadel 8c Anthony Faiola, Khadafy 's Forces
Assault Rebels, Protestors, BOSTON GLOBE, Mar. 5, 201 1, at 3 (reporting firing on demonstrators);
Jason Koutsoukis, Gaddafi's Forces Unleashed on Rebels, SYDNEY MORNING HERALD, Mar. 3,
201 1, at 1 (reporting alleged government use of mercenaries); Maggie Michael 8c Paul Schemm,
Gadhafi Forces Strike Back, CHICAGO SUN-TlMES, Feb. 25, 201 1, at 25.
95. Michael N. Schmitt, Wings Over Libya: The No-Fly Zone in Legal Perspective, 36 YALE
International Law journal Online 45 (201 1), available at http://www.yjil.org/online/
volume-36-spring-2011/wings-over-libya-the-no-fly-zone-in-legal-perspective; Michael W. Lewis,
175
Status of Government Forces in Non-International Armed Conflict
How Should the Conflict in Libya Be Categorized?, OPINIO JURIS (Mar. 30, 2011), http://
opiniojuris.org/201 1/03/30/how-should-the-conflict-in-libya-be-categorizeaV; Kenneth Anderson,
Humanitarian Intervention in Libya, OPINIO JURIS (Mar. 7, 2011), http://opiniojuris.org/2011/03/
07/humanitarian-intervention-in-libya-follow-up-post/; Patrick O'Donnell, Humanitarian
(i.e., military and/or otherwise) Intervention in Libya?, RATIO JURIS (Feb. 24, 2011), http://
ratiojuris.blogspot.com/2011/02/humanitarian-ie-military-and-otherwise.html (summarizing
early blog posts concerning the Libyan situation).
96. See Tamas Hoffman, Squaring the Circle? - International Humanitarian Law and Trans-
national Armed Conflicts, in RULES AND INSTITUTIONS OF INTERNATIONAL HUMANITARIAN
Law Put to the Test of Recent Armed Conflicts 217 (Michael J. Matheson & Djamchid
Momtaz eds., 2010); Geoffrey S. Corn, Transnational Armed Conflict: A "Principled" Approach to
the Regulation of Counter-Terror Combat Operations, 42 ISRAEL LAW REVIEW 46 (2009); Andreas
Paulus & Mindia Vashakmadze, Asymmetrical War and the Notion of Armed Conflict - A Tenta-
tive Conceptualization, 9 1 INTERNATIONAL REVIEW OF THE RED CROSS 95 (2009); Marco Sassoli,
Transnational Armed Groups and International Humanitarian Law, Program on Humanitarian
Policy and Conflict Research, Harvard University, Occasional Paper Series No. 6 (Winter 2006),
available at http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf
(expressing skepticism at the application of the law of war to what are in the author's opinion
legally novel groups).
97. See U.N. Charter art. 2(7). Part of the Charter's international security regime, Article 2(7)
states, "Nothing in the present Charter shall authorize the United Nations to intervene in mat-
ters which are essentially within the domestic jurisdiction of any state. . . ." Id.
98. The term "networked cyber attack" is intended to distinguish attacks using the Internet
or other electronic communications as a means of delivery of malware from attacks delivered
manually or from the physical location of the target computer. The latter would be quite possible
to conduct within the territorial boundaries of a single State — for instance, as part of a NIAC.
99. Charles Clover, Kremlin-backed Group Behind Estonia Cyber Blitz, FINANCIAL TIMES
(Mar. 11, 2009), http://www.ft.eom/cms/s/0/57536d5a-0ddc-llde-8ea3-0000779fd2ac.html.
100. See Alan Travis, Counter-Terrorism Strategy Driven by "Cyber jihad" Threat, THE
GUARDIAN (London), July 12, 201 1, available at http://www.guardian.co.Uk//politics/201 1/jul/l 2/
counter-terrorism-strategy-cyberjihad-threat/print?mobile-redirect=false.
101. See Rain Ottis, From Pitchforks to Laptops: Volunteers in Cyber Conflicts, in CONFERENCE
ON CYBER CONFLICT, PROCEEDINGS 2010, at 97 (Christian Czosseck & Karlis Podins eds., 2010);
Technology, Policy, Law, and Ethics Regarding U.S. acquisition and Use of Cyber-
ATTACK CAPABILITIES 2-2 (William A. Owens, Kenneth W. Dam & Herbert S. Lin eds., 2009).
102. Resort to the object and purpose of international law norms is widely accepted as a
means of resolving ambiguity, particularly among continental European international lawyers
and jurists. The term appears in the widely ratified Convention on Treaties. Vienna Convention
on the Law of Treaties art. 31, May 23, 1969, 1 155 U.N.T.S. 331.
103. See INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE
General's School, U.S. Army, Law of War Handbook 166 (2004).
104. A.P.V. Rogers, Law of the Battlefield 7 (1996).
105. W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 4 (1990).
106. Lieber Code, supra note 5, art. 22. The nearly contemporaneous St. Petersburg Declara-
tion of 1868 stated similarly, "[T]he only legitimate object which States should endeavor to ac-
complish during war is to weaken the military forces of the enemy." Declaration Renouncing the
Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, Dec. 11, 1868, 138
Consol. T.S. 297, reprinted in Schindler & Toman, supra note 5, at 91, 92.
176
Sean Watts
107. "In order to ensure respect and protection of the civilian population and civilian objects,
the Parties to the conflict shall at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly shall direct
their operations only against military objectives." Additional Protocol I, supra note 4, art. 48.
108. Protocol I employs two prongs in the targeting aspect of distinction. First, combatants must
direct their weapons only against specific military objectives. Id., arts. 51(4)(a), 52(2). Second,
targeting distinction requires that combatants not employ weapons that are inherently incapable
of distinguishing between enemy combatants and civilians. Id., art. 51(4)(b).
109. See id., arts. 51(3) and 52.
110. Id., art. 51(4).
111. Id., art. 44(3).
112. Id.
113. See COMMENTARY ON THE ADDITIONAL PROTOCOLS, supra note 39, U 1684. The Com-
mentary notes that fifty speakers addressed Article 44 in debate and introduced thirteen amend-
ments to the original proposal. Id. The United States does not consider Article 44(3) reflective of
customary international law and specifically objects to it. See Matheson, supra note 40, at 419.
114. Additional Protocol I, supra note 4, art. 58.
1 15. Commentary on the Additional Protocols, supra note 39, ^ 2244.
116. See Parks, supra note 105, at 1 12. Parks observes,
Any claim of "humanitarian gain" is offset by the fact that the provisions contained in
Protocol I shift the responsibility for the protection of the civilian population away
from the host nation (which has custody over its civilian population, and which tradi-
tionally has borne the principal responsibility for the safety of the civilian population)
almost exclusively onto an attacker.
Id.
117. Id.
118. States did not fully incorporate the Additional Protocol I expressions of distinction into
the NIAC targeting provisions of Additional Protocol II. Protocol II protects the civilian popula-
tion from "the dangers arising from military operations." Additional Protocol II, supra note 17,
art. 13(1). The same article observes, "The civilian population as such, as well as individual civil-
ians, shall not be the object of attack." Id., art. 13(2). The article forbids attacks intended to ter-
rorize the civilian population. Id. And finally, Additional Protocol II reproduces the Protocol I
rule protecting civilians from intentional targeting "unless and for such time as they take a direct
part in hostilities." Id., art. 13(3). An influential manual on the law of armed conflict applicable
to NIAC concludes, "Today, it is indisputable that the principle of distinction is customary
international law for both international and non-international armed conflict." NIAC MANUAL,
supra note 32, ^1 1.2.2. Similarly, an ICRC-sponsored study of customary international law con-
cludes distinction is a norm of customary international law in both I AC and NIAC. CUSTOMARY
International Humanitarian Law, supra note 32, at 3.
119. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Prop-
erty in the Event of Armed Conflict art. 22, Mar. 26, 1999, 2253 U.N.T.S. 212 [hereinafter 1999
Second Protocol to 1 954 Hague Convention] . The base 1954 Hague Convention applies to inter-
national armed conflict and occupation. Convention for the Protection of Cultural Property in
the Event of Armed Conflict art. 18, May 14, 1954, 249 U.N.T.S. 240. The 1999 Second Protocol
expands application to "conflict not of an international character, occurring within the territory
of one of the Parties." 1999 Second Protocol to 1954 Hague Convention, supra, art. 22.
177
Status of Government Forces in Non-International Armed Conflict
120. Conventional Weapons Convention, supra note 10. In 2001, States parties amended the
scope of material application of the Convention. Previously the Convention only applied to in-
ternational armed conflict. Currently the scope of application reads:
1 . This Convention and its annexed Protocols shall apply in the situations referred to
in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection
of War Victims, including any situation described in paragraph 4 of Article I of Addi-
tional Protocol I to these Conventions.
2. This Convention and its annexed Protocols shall also apply, in addition to situa-
tions referred to in paragraph 1 of this Article, to situations referred to in Article 3 com-
mon to the Geneva Conventions of 12 August 1949. This Convention and its annexed
Protocols shall not apply to situations of internal disturbances and tensions, such as ri-
ots, isolated and sporadic acts of violence, and other acts of a similar nature, as not be-
ing armed conflicts.
3. In case of armed conflicts not of an international character occurring in the terri-
tory of one of the High Contracting Parties, each party to the conflict shall be bound to
apply the prohibitions and restrictions of this Convention and its annexed Protocols.
4. Nothing in this Convention or its annexed Protocols shall be invoked for the pur-
pose of affecting the sovereignty of a State or the responsibility of the Government, by
all legitimate means, to maintain or re-establish law and order in the State or to defend
the national unity and territorial integrity of the State.
5. Nothing in this Convention or its annexed Protocols shall be invoked as a justifica-
tion for intervening, directly or indirectly, for any reason whatever, in the armed con-
flict or in the internal or external affairs of the High Contracting Party in the territory of
which that conflict occurs.
6. The application of the provisions of this Convention and its annexed Protocols to
parties to a conflict which are not High Contracting Parties that have accepted this Con-
vention or its annexed Protocols, shall not change their legal status or the legal status of
a disputed territory, either explicitly or implicitly.
7. The provisions of Paragraphs 2-6 of this Article shall not prejudice additional
Protocols adopted after 1 January 2002, which may apply, exclude or modify the scope
of their application in relation to this Article.
Id., art. 1.
121. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction art. 1.1(a), Sept. 18, 1997, 2056 U.N.T.S. 211.
1 22. Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction art. 1.1(b), Jan. 13, 1993, 1974 U.N.T.S. 45.
123. Convention on Cluster Munitions art. 1, May 30, 2008, 48 INTERNATIONAL LEGAL
MATERIALS 357 (2008) (stating, "Each State Party undertakes never under any circumstances to
use cluster munitions").
124. Rome Statute, supra note 48, art. 8(2)(c)-(f).
125. The criteria here referenced are derived from the Third Geneva Convention, Article 4,
and are supposed by many to constitute criteria for privileged participation in hostilities. They
include belonging to a party, being commanded by a person responsible for his subordinates,
having a fixed distinctive sign, carrying arms openly and conducting operations in accordance
with the law of war. 1949 Geneva Convention III, supra note 3, art. 4.
126. Emily Crawford, The Treatment of Combatants and Insurgents under the
Law of Armed Conflict 68 (2010).
178
Sean Watts
127. Private security contractors may have been, however, intermingled with the civilian
population inconsistent with the object of Additional Protocol I, Article 58 or a customary rule
to similar effect.
128. William H. Boothby, Weapons and the Law of Armed Conflict 2 (2008).
129. See Statute of the International Criminal Tribunal for the former Yugoslavia art. 3,
amended Sept. 2009, available at http://www.icty.Org/x/file/Legal%20Library/Statute/statute
_sept09_en.pdf (criminalizing violations of the customs of war, including those applicable in
NIAC); Statute of the International Criminal Tribunal for Rwanda art. 4, S.C. Res. 955, U.N.
Doc. S/RES/955 (Nov. 8, 1994) (criminalizing violations of Common Article 3 of the 1949
Geneva Conventions and Protocol II).
130. Rome Statute, supra note 48, art. 17(1) (a).
131. Prosecutor v. Tadic, supra note 12, ^ 97.
132. 1949 Geneva Convention III, supra note 3, art. 130.
133. 1949 Geneva Convention IV, supra note 3, art. 147.
134. CULLEN, supra note 2, at 56 (quoting Eldon Van C. Greenberg, Law and the Conduct of
the Algerian Revolution, 1 1 HARVARD INTERNATIONAL LAW JOURNAL 37, 70-71 (1970)). In full,
Greenberg's maxim addresses "revolutionary war." Id.
135. See, e.g.. Prosecutor v. Tadic, supra note 12, ^fl[ 97-98 (observing the distinction between
law of IAC and that of NIAC as irrelevant).
136. The International Committee of the Red Cross prepared the first draft of what would be-
come the 1949 Geneva Conventions. The most ambitious passage of the draft would have ap-
plied the Conventions to all conflicts. Article 2 of the Stockholm Draft would have made the
Conventions applicable in their entirety not only to armed conflict and belligerent occupation
between States parties, but also to "armed conflict not of an international character which may
occur in the territory of one or more of the High Contracting Parties." Draft Convention for the
Protection of Civilian Persons in Time of War, 1949, reprinted in I 1949 GENEVA CONFERENCE
FINAL RECORD, supra note 65, at 113. States rejected the proposal. II-B 1949 GENEVA
CONFERENCE FINAL RECORD, supra, at 41-43. Among other conceptual concerns, States noted
that applying the Civilians Convention to insurgents would be problematic because the Conven-
tion relied on enemy nationality to define the civilian protected-person class. Id. at 41.
137. See DOCUMENTS ON THE LAWS OF WAR 9 (Adam Roberts & Richard Guelff eds., 3d ed.
2000) (citing Ministere des Affaires Etrangeres, Report of the Second Subcommission in the offi-
cial report, Conference Internationale de la Paix, La Haye, 18 Mai-29 Juillet 1899, at 49-51
(Imprimerie Nationale, The Hague, 1899); WILLIAM I. HULL, THE TWO HAGUE CONFERENCES
and Their Contributions to International Law 215-20 (1908)).
138. See CRAWFORD, supra note 126, at 29.
139. The references to "international law," to "the law of nations" and to "established cus-
tom" appear, respectively, in the Hague and Additional Protocol I versions of the Martens
clause. 1899 Hague Convention II, supra note 30, pmbl.; 1907 Hague Convention IV, supra note
24, pmbl.; Additional Protocol I, supra note 4, art. 1(2).
140. The reference to "usages established among civilized peoples" appears in the 1899/1907
Hague expression of the clause, as well as the 1949 Geneva Convention expression. 1899 Hague
Convention II, supra note 30, pmbl.; 1907 Hague Convention IV, supra note 24, pmbl.; 1949
Genva Convention IV, supra note 3, art. 158.
141. Michael Bothe et al., New Rules for Victims of Armed Conflicts:
Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of
1949, at 620 (1982).
179
Status of Government Forces in Non-International Armed Conflict
1 42. See NIAC MANUAL, supra note 32; CUSTOMARY INTERNATIONAL HUMANITARIAN LAW,
supra note 32; Eric Talbot Jensen, Applying a Sovereign Agency Theory of the Law of Armed Con-
flict, 12 CHICAGO JOURNAL OF INTERNATIONAL LAW 685 (2012).
143. See DlNSTEIN, supra note 19, at 13, 16-20.
1 44. Describing British efforts to defeat Germany in North Africa, Winston Churchill is cred-
ited with the phrase, "Now this is not the end. It is not even the beginning of the end. But it is,
perhaps, the end of the beginning." The Churchill Society, http://www.churchill-society-london
.org.uk/EndoBegn.html (quoting Winston Churchill, The End of the Beginning, The Lord Mayor's
Luncheon, Mansion House (Nov. 10, 1942)).
145. Anthea Roberts & Sandesh Sivakumaran, Hybrid Sources of Law: Armed Groups and the
Creation of International Law, 37 YALE JOURNAL OF INTERNATIONAL LAW 107 (201 1).
146. See Kal Raustiala & Anne-Marie Slaughter, International Law, International Relations
and Compliance, in THE HANDBOOK OF INTERNATIONAL RELATIONS (Walter Carlsnaes, Thomas
Risse & Beth A. Simmons eds., 2002); Michael W. Doyle & Geoffrey S. Carlson, Silence of the
Laws? Conceptions of International Relations and International Law in Hobbes, Kant, and Locke, 46
COLUMBIA JOURNAL OF TRANSNATIONAL LAW 648 (2008); Eric A. Posner & Alan O. Sykes, An
Economic Analysis of State and Individual Responsibility under International Law, 9 AMERICAN
Law & Economics Review 72 (2007).
180
VIII
Toward a Limited Consensus on the Loss of
Civilian Immunity in Non-International
Armed Conflict: Making Progress through
Practice
Stephen Pomper*
I. Introduction and Overview
A quick glance at the Geneva Conventions and their Additional Protocols is
sufficient to reveal that the treaty rules governing the conduct of parties to
a non-international armed conflict (NIAC) are less developed than those govern-
ing parties engaged in international armed conflicts (IACs). The total number of
treaty provisions governing the latter outstrips the number governing the former
by many dozens. While there is a range of historical and political reasons for this,
there is also a core practical question that appears to have hampered the develop-
ment of the law of armed conflict (LOAC) with respect to NIACs: How do we iden-
tify the specific actors to whom the rules in this area would apply?
Finding a satisfying answer to this question — which in a variety of ways requires
us to translate from familiar concepts and categories in the world of international
* This article closely derives from a presentation given at the U.S. Naval War College on June 21,
201 1 when the author was serving as the Assistant Legal Adviser for Political-Military Affairs at
the U.S. Department of State. This article (like that presentation) was prepared in his personal
capacity and does not necessarily represent the official views of the Department of State or the
U.S. government.
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
armed conflict into the world of non-international armed conflict — is both very
difficult and critically important. It is very difficult because in NIAC the amor-
phous, clandestine nature of the organizations with which we are dealing — and the
often mercurial nature of the relationship between individuals and these organiza-
tions — challenges the instinctive desire that lawyers have to draw tight parallels be-
tween the clearly defined actors with which we are used to dealing in IAC
(including uniformed soldiers fighting on behalf of often declared enemies with legal
personality and right authority) and the murkier ones that we are required to deal
with in NIAC. The parallels are there but frequently they are not as tidy as we want
them to be, and operators will tell us that if we define categories too rigidly, we will
impede their ability to meet the threat they are facing. Yet, if they are too loosely
drawn, then there is a risk of sanctioning deprivations of life and liberty that will be
criticized as illegitimate and arbitrary.
Unsurprisingly, efforts to develop a clearer answer to this question have been at
the center of some very important legal conversations in recent years. In
Guantanamo habeas litigation, the U.S. government has been required to articu-
late in numerous pleadings how to assess whether someone is "part of al Qaeda,
the Taliban or associated forces, and the U.S. federal courts (in particular the District
of Columbia (D.C.) Circuit) have built up some jurisprudence in this area. There
have also been efforts to synthesize expert opinion — notably, if not fully success-
fully, in the International Committee of the Red Cross's (ICRC's) Interpretive
Guidance 1 that was released in 2009. Finally, and most significantly for purposes of
the emergence of shared international norms, States have been talking to each
other about their experience, some of which is of course shared experience, in
places like Afghanistan, Iraq and Libya.
This article will touch briefly on the ways in which the conversation about when
an individual loses protection from attack through membership in an organized
armed group (and related questions of what it means to take direct part in hostili-
ties) have developed in the course of the last several years. In so doing, it will under-
score that the development of the law in this area remains for the time being largely
in the hands of States, and, in particular, their executive branches. It will also give a
sense of where like-minded States with which the U.S. government works particu-
larly closely have reached consensus in this area, as well as identify some areas
where there remains a range of views. To keep the scope of this exercise manage-
able, the paper will keep a narrow focus on the threshold for membership in orga-
nized armed groups and direct participation in hostilities on the non-State side of a
NIAC. It will not address a number of important related questions that also have a
bearing on the question of when individuals lose immunity from being made the
object of attack in non-international armed conflict, including questions about the
182
Stephen Pomper
point at which armed violence can be deemed an armed conflict, the level of cohe-
sion that is required in order to deem an organization an "organized armed
group," the circumstances under which an organized armed group can be said to
be engaged in armed conflict, the geographic scope of armed conflict and the cir-
cumstances in which legal rules outside the law of armed conflict may be relevant.
//. Guantanamo Litigation
When in June 2008 the Supreme Court decided in the Boumediene case 2 that
Guantanamo detainees would have an opportunity to challenge the legality of their
detention in U.S. federal court, without addressing the standard for who could be
detained, it left the lower courts poised to engage in a sustained lawmaking exercise
with potentially significant implications for the question of who forms part of a
non-State organized armed group (like al Qaeda, the Taliban or their associated
forces) that is engaged in an armed conflict against a State.
The issue came pointedly to a head when, shortly after the present administra-
tion came into office, Judge Bates asked the government to file a brief in the
Hamlily case 3 describing its detention authority under the 2001 Authorization for
the Use of Military Force (AUMF). 4
The U.S. government complied by filing its brief of March 13, 2009, which ar-
gued that (i) when giving content to the broad language of the AUMF the U.S. gov-
ernment, consistent with the Supreme Court's 2004 Hamdi decision, 5 would look
to the principles of the law of armed conflict, and (ii) because of the lack of codifi-
cation in the law of armed conflict relating to non-State actors it would sometimes
be necessary to draw analogies to the international laws of war applicable to inter-
national armed conflicts between States. The brief then asserted (in relevant part)
that when viewed through this lens the U.S. government had the authority in the
present conflict to hold individuals who were "part of" or "substantially sup-
ported" al Qaeda, the Taliban or associated forces, but left to be explored in future
cases what the precise contours of those terms would be.
As of mid-20 1 1 , two years (and roughly fifty trial court and appellate decisions)
later, what do we see? As concerns the topic of this article, one thing that appears
to have emerged is an increasingly clear picture that the courts are unlikely to be-
come the laboratory in which the metes and bounds of armed group membership
are worked out. Initially, the district courts sought to draw parallels between
armed groups and traditional armed forces in wrestling with the question of how
LOAC ought to apply. Notably, the 2009 Hamlily (Judge Bates) 6 and Gherebi
(Judge Walton) 7 opinions took the view that although it was possible to reach the
conclusion that LOAC permitted the detention of certain individuals working
183
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
within the al Qaeda structure based on status, it was necessary that they be part of
the command structure in order for this to be the case. There was arguably some
distance between these two opinions on the question of whether the command
structure must be within the military wing of the armed group, and how the issue
of "support" should be addressed for purposes of determining status (either treat-
ing it as contributing to membership analysis or treating it as irrelevant), but they
were operating very much within the LOAC framework, as were later trial court
opinions that may have varied in their interpretation of LOAC but essentially ac-
cepted it as the analytic framework.
This has decidedly not, however, been the case at the appellate court level, where
relevant decisions are marked in part by the following characteristics: First, while
the law has not been entirely settled yet, at least one panel has, in the Bihani case,
overtly dismissed the importance of international law in interpretation of the
AUMF in an opinion that, although effectively overruled by an en banc decision
that described this feature of the panel decision as dictum, marks a disinclination
to use the international law of armed conflict as a tool with which to excavate the
meaning of the AUMF. 8 Second, although the appellate court continues to offer its
views about what sorts of fact patterns would suffice in its views to establish deten-
tion authority for purposes of the AUMF, commentators have noted (correctly in
my view) that the Circuit Court's approach to the definition of who may be de-
tained has been far less important to the outcome of cases than its focus on eviden-
tiary issues. Professor Stephen Vladeck noted in May 2010 that although he found
the D.C. Circuit caselaw governing the scope of the government's detention power
to be troubling, in his view "[it] has not yet had a meaningful impact on any indi-
vidual cases. In marked contrast is the D.C. Circuit's jurisprudence concerning the
government's burden of proof in post- Boumediene habeas cases, and how that bur-
den should affect district court assessments of the facts of individual detainees'
claims." 9 Third, as the D.C. Circuit has increasingly focused on what is required for
the government to meet its evidentiary burden, its rulings in this area have had the
effect of creating a substantial zone of deference for executive branch judgment. In
the al-Adahi decision, 10 the Circuit Court rejected trial court views that items of ev-
idence must rise or fall on their own, instead requiring that they be looked at as a
mosaic in which suspicious data points are taken as corroborating each other even
if not fully proven on their independent merits. And although "preponderance of
the evidence" continues to be the governing standard, some Circuit judges have
suggested that a lower standard might be appropriate. 11
If the D.C. Circuit's caselaw indicates a disinclination on its part to decide de-
tention decisions based on a fine parsing of LOAC, and therefore to become a sig-
nificant engine driving refinements to the U.S. perspective on that body of law,
184
Stephen Pomper
then it is hardly clear that the Supreme Court will be any more eager to wander into
these thickets. To be sure, in the past, the Supreme Court has very much been the
final word on the extension of key rights and privileges to Guantanamo (as was the
case in Rasul (2004), n Hamdan (2006) 13 and Boumediene (2008)). There is reason,
however, to believe that the Court may not wade in so dramatically on the issues
being addressed in the present litigation. The composition of the Court has
changed since the pathbreaking decisions of 2004-8 (including through the addi-
tion of Justice Kagan, who, because of her involvement as Solicitor General, maybe
recused from a number of cases that would present the Court with core detainee
status questions) and so have the atmospherics. Criticism of review procedures and
treatment issues — issues that may have helped draw the Court's attention in the
past — have largely been addressed over the past few years through a combination
of judicial decisions (in particular the confirmation that Common Article 3 applies
to al Qaeda detainees in the Hamdan decision, and the extension of habeas to
Guantanamo in the Boumediene decision) and executive acts (including the treat-
ment guarantees offered under Executive Order 13,491 ). 14 Whether a set of facts or
an issue of law might arise that the Court considers in need of its review remains to
be seen, but it would not be surprising if in light of the above the Court were to
continue to maintain its posture of reserve.
It bears mention that the judicial review of Guantanamo detainees has occurred
in the detention context, and that there are questions about whether issues relating
to targeting in the context of an armed conflict would even be justiciable. Even if
they were, however, the courts seem to have placed their decisions in a framework
where it appears that they are essentially creating a broad zone of deference for the
exercise of reasonable military judgment. In its current form, it is somewhat diffi-
cult to draw from the caselaw more than broad guidance about the boundaries of
that zone, and there is a great deal that is left unsaid about the specific factors that a
specific decision maker in a specific set of circumstances should weigh in taking a
targeting decision. For at least the time being, then, the core issues remain very
much for the executive branch to work through.
III. Experts' Processes (the ICRC Report)
If the D.C. Circuit has created a de facto zone of deference around military deci-
sion making, the same cannot so readily be said of the ICRC's Interpretive Guid-
ance on the Notion of Direct Participation in Hostilities. Because the report has been
much discussed, it will be addressed here only briefly with the following few
observations.
185
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
By way of background, in 2003, the ICRC (together with the Asser Institute)
mounted an effort to provide guidance on the question of when civilians lose their
immunity from attack in both international and non-international armed conflict.
They convened an experts group to study the question and produce a report. The
process was guided by, among others, Nils Melzer, who has done his own scholarly
work on the issue of targeted killings. Among the main findings in the report were
that individuals who perform a "continuous combat function" — i.e., a role that in-
volves direct participation in hostilities on a persistent, non-sporadic and non-
spontaneous basis — on behalf of the military wing of an organized armed group
that is party to a conflict become targetable on the basis of their status as "mem-
bers" of the organized armed group until their status changes. With regard to direct
participation in hostilities, the report also found that three components must be
present in order for an action to constitute direct participation in hostilities: a
threshold of harm must be met; there must be causation; and there must be a "bel-
ligerent nexus" — i.e., a sufficient connection between the action and the armed
conflict. Each one of these criteria was explored at some length, and the report set
forth lists of activities that would, or would not, satisfy the criteria as conceived by
the report. 15
The ICRC effort produced a report that, although a contribution to the litera-
ture in this area, has generated a fair amount of criticism, and has not become the
gold standard that might originally have been hoped for. There were some major
issues over content. As has been much discussed, the report included a section ar-
guing that there was a legal foundation for the principle that militaries must use the
least harmful means in addressing legal targets, which generated great concern
among certain prominent experts who participated in the process, who believed
that it lacked a basis in law or practice, and was not consistent with what had been
discussed in the drafting process. From the operational perspective, the feedback
was that the report was too rigid and complex, and did not give an accurate picture
of State practice or (in some respects) of a practice to which States could realisti-
cally aspire. Many of the experts who had participated in the ICRC process de-
clined to be named in the report, and the U.S. government in its habeas filings
made clear that it did not regard the study as an authoritative statement of the law.
In the final analysis, it appeared that the "experts' process" through which the
product developed could not substitute for the difficult, painstaking and necessary
process of allowing States to develop the law in areas such as this.
Nevertheless, notwithstanding the issues that have been raised with respect to
the ICRC report, we should not lose sight of two very important contributions that
it made — one substantive and one procedural. Substantively, it is critical to recog-
nize that the study is in some ways pathbreaking in the level of recognition that it
186
Stephen Pomper
gives to the concept that individuals who become members of organized armed
groups lose their civilian status and, while members, can be targeted on the basis of
their status alone for the duration of a NIAC. Moreover, procedurally, the report
has helped to catalyze important discussion among the U.S. government and its
partners about the topics that are addressed in the report. The emerging spectrum
of views on this subject is addressed in the following section.
IV. State Practice
When the ICRC report emerged, one reaction that at least some of its readership
offered was that it would take some time for States to digest its contents and pro-
vide some feedback on where it tracked — and did not track — State practice. As
noted above, this process has in fact been under way and, based on conversations
with interlocutors in a number of partner governments, it is possible to offer a gen-
eral assessment of the spectrum within which the views of the United States and a
number of its closest partners fall. These observations draw from personal and pro-
fessional exchanges over the past several years, but are relayed in the author's per-
sonal capacity. 16
A. Overarching Considerations
There is a strong consensus that the point of departure for any analysis of when
civilians become liable to attack under LOAC is the customary principle of distinc-
tion. Consistent with this principle, both Additional Protocol I 17 (in Article 51(3))
and Additional Protocol II 18 (in Article 13(3)) provide that in armed conflict civil-
ians enjoy protections from being made the object of attack "unless and for such
time as they take a direct part in hostilities." 19 Moreover, with respect to NIAC, the
commentary on Article 13(3) additionally explains that "[t]hose who belong to
armed forces or to organized armed groups may be attacked at any time. If a civilian
participates directly in hostilities, it is clear that he will not enjoy any protection
against attacks for as long as his participation lasts." 20
Taken together, the Additional Protocols and the quoted passage from their
commentary suggest that in armed conflict the following individuals (in addition
to the members of regular armed forces who are liable to attack) relinquish their
protection under international humanitarian law from being made the object of
attack: (i) individuals who become members of organized armed groups (i.e., those
referred to in the first sentence of the above-quoted passage from the Article 13(3)
commentary) and (ii) civilians who are taking direct part in hostilities without be-
longing to an armed force or organized armed group (i.e., those referred to in the
second sentence of the above-quoted passage). 21 Taking into account that current
187
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
treaty law does not provide specific guidance on what it means to be a member of
an organized armed group, or to take direct part in hostilities, the following princi-
ples emerge from Article 51(3) of Additional Protocol I and Article 13(3) of Addi-
tional Protocol II, and are supported by their Commentaries:
• A critical difference between individuals who lose their protection from at-
tack because of their membership in an organized armed group and individuals
who lose such protection as a result of direct participation in hostilities without
belonging to an organized armed group is that an individual who loses protection
because of membership in an organized armed group may be attacked "at any
time." Because his or her membership deprives him or her of protection, such an
individual does not then need to be actually involved in particular hostilities to be
lawfully attacked at any point in time. 22 By contrast, a civilian who is not a mem-
ber of an organized armed group and is taking direct part in hostilities loses pro-
tection from attack only "for as long as his participation lasts."
• The determination whether an individual is a member (or ceases to be a
member) of an organized armed group or is taking direct part in hostilities should
be taken by the decisionmaker based on information reasonably available to him
or her at the time and taking into account the considerations set forth below.
• Individuals making targeting decisions based on a determination that an in-
dividual is a member in an organized armed group, or is taking direct part in hos-
tilities, may not act in the absence of sufficient confidence in the information
establishing the factual basis for the determination. 23 When there is insufficient
confidence in the information, the determination should not be made unless and
until such time as sufficient information to make a reasonable determination has
been identified. Depending on the facts, deferral of one determination (e.g., that
an individual is a member of an organized armed group) need not foreclose the
other (e.g., that an individual is directly participating in hostilities).
B. Membership in Organized Armed Groups
As to whether an individual has become a member of an organized armed group
and therefore is liable to attack at any time, there is a range of views among the
United States and its partners on the precise "test" that should be applied to deter-
mine membership. Some partners appear to believe that the test for membership
must be based fundamentally on the function performed by the individual in ques-
tion. But there is also a view that, because of the clandestine and decentralized nature
of certain organized armed groups, it maybe difficult to discern a command struc-
ture that is clearly analogous to the structures that would be found in State militar-
ies, and that it is accordingly important to be cautious about focusing too
188
Stephen Pomper
stringently on functions that can be analogized to those performed in a traditional
command structure. Notwithstanding this spectrum of views about how to define
the membership test, there is a shared sense that the following factors may bear on
such a determination, with the precise weight given to any of these factors depend-
ent on, among other things, the test that is applied:
• The extent to which an individual performs a function on behalf of an orga-
nized armed group that is both analogous to a function traditionally performed by
a member of a State military who is liable to attack and that is performed within
the command structure of the organization (i.e., the individual is either carrying
out or giving orders to perform such a function). 24 Examples of activities that
would likely qualify include those that would constitute combat, combat support
and combat service support functions if performed for a regularly constituted
armed force and carrying arms openly, exercising command over the group or one
of its units, or conducting planning related to the conduct of hostilities. 25
• The frequency of the individual's preparation, command or execution of
operations amounting to direct participation in hostilities and the intensity of the
damage or harm likely to be inflicted by such participation.
• Other similar factors determined in the reasonable military judgment of the
decisionmaker to demonstrate an individual's integration into the organized
armed group, such as the adoption of a rank, title or style of communication; the
taking of an oath of loyalty; or the wearing of a uniform or other clothing, adorn-
ments or body markings that mark out members in the group — in each case in a
context and manner indicating that these acts of identification reliably connote
meaningful assimilation into the group. 26
Relevant factors in determining that an individual has ceased to be a member of
an organized armed group include the amount of time that has passed since that
individual has taken relevant action on behalf of the group in question, and
whether he or she affirmatively has disassociated himself or herself from the orga-
nized armed group. Decisionmakers should base these determinations on the stan-
dard of reasonableness in the prevailing circumstances.
C. Direct Participation in Hostilities
With respect to determining what it means to take "direct part in hostilities," as a
threshold matter there seems to be a common view that direct participation in hos-
tilities stands in contrast to support by a general population to a nation's war effort.
Civilians who are contributing to a nation's war effort accordingly do not by dint of
this alone lose their protection. Any determination that a civilian is taking part in
hostilities (and thus loses immunity from being made the object of attack) will be
189
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
highly situational and needs to be made by a decisionmaker taking the following
considerations into account:
• Nature of the harm: Is the individual's activity directed at (i) adversely affect-
ing one party's military capacity or operations or enhancing the capacity/operations
of the other, or (ii) killing, injuring or damaging civilian objects or persons?
• Causation/integration between action and harm: Is there a sufficiently direct
causal link between the individual's relevant act and the relevant harm, or does the
act otherwise form an integral part of coordinated action resulting in that harm?
(Although it is not enough that the act merely occurs during hostilities, there is no
requirement that the act be only a single causal step removed from the harm.)
• Nexus to hostilities: Is the individual's activity linked to an ongoing armed
conflict and is it intended either to disadvantage one party, or advance the inter-
ests of an opposing party, in that conflict?
The period during which an individual can be deemed to be directly participat-
ing in hostilities is generally viewed to include the period during which that indi-
vidual is deploying to and returning from the hostile act, but there is a range of
views about whether the acquisition of specific materials necessary for an attack
might under certain circumstances be considered part of the deployment period,
and whether the period in which an individual goes into hiding following an attack
might under certain circumstances be considered part of the return. There is also a
range of views about whether each of the foregoing three factors must be present in
order to make a determination that an individual is directly participating in hostili-
ties (or whether a "totality of the circumstances" approach should govern), and
about whether certain types of activities must be excluded from the definition of
direct participation in hostilities (e.g., financial support). Moreover, there is a
range of views concerning the relevance of geographic and temporal proximity of
an individual's actions to particular hostile acts in ongoing hostilities.
At some point, as noted above, the frequency or intensity of an individual's di-
rect participation may establish that the individual is a functional member of an
organized armed group, and there is also a perspective that persistent direct
participation in hostilities may establish the individual in question to be continu-
ously liable to attack for the period of persistent activity even if it is insufficient to
establish functional membership. 27 Accordingly, where an individual takes direct
part in hostilities, it is important to determine whether the nature and frequency of
the direct participation is such that the loss of protection lasts only for the duration
of specific acts, or is sufficiently persistent that the individual is liable for attack for
a wider period, including the periods between the specific acts.
190
Stephen Pomper
V. Conclusion
The above description of views suggests in some ways a clustering by the U.S. gov-
ernment and its partners around certain views that are put forward in the ICRC
study on direct participation in hostilities. There is increasing convergence, for ex-
ample, around the notion that there are two roads to loss of immunity — member-
ship and direct participation in hostilities. Among the considerations that bear on
membership, there is growing consensus that functional factors echoing some of
the factors from the ICRC's "continuous combat function test" are at least rele-
vant. Moreover, the factors that a number of States look at in assessing whether an
action constitutes direct participation in hostilities parallel, to some extent, the
three factors that were captured in the ICRC study.
There are, of course, important differences between what is described in this ar-
ticle and what is described in the ICRC study. The tests and factors described here,
reflecting States' operational experience, are less rigidly constructed. They do not
have the complexity of the tests and factors articulated in the ICRC document. And
there is no reference to the ICRC's suggested rule that parties must use the "least
harmful means" for subduing opponents as described in Section IX of the Interpre-
tative Guidance — a test for which it is difficult to detect much, if any, support
among the United States and like-minded partners.
But, as noted above, it is increasingly clear that it will be State practice — rather
than international expert groups or the courts of any one country — that will drive
the development of a common view within the international community. We are
already seeing the outline of a limited consensus emerging, and, as we move for-
ward, we may well see an increasing level of accord among certain like-minded
States on the question of how individuals lose immunity from being made the ob-
ject of attack in the context of non-international armed conflicts.
Notes
1. Nils Melzer, International Committee of the Red Cross, Interpretive
Guidance on the Notion of Direct Participation in Hostilities under International
HUMANITARIAN LAW 32 (2009), available at http://www.icrc.org/eng/assets/files/other/icrc_002
_0990.pdf [hereinafter INTERPRETIVE GUIDANCE].
2. Boumediene v. Bush, 553 U.S. 723 (2008).
3. Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009).
4. Pub. L. No. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541 note (Supp. V
2005).
5. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
6. Hamlily, 616 F. Supp. 2d at 63.
7. Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009).
191
Toward a Limited Consensus on the Loss of Civilian Immunity in NIAC
8. Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir. 2010), cert, denied, 131 S. Ct. 1814
(201 1). Notably, a different panel of the D.C. Circuit looking at the al Warafi case suggested
somewhat greater receptivity to applying the law of armed conflict when, in remanding the case
to the district court, it asked the lower court to "address whether Al Warafi was permanently and
exclusively medical personnel within the meaning of Article 24 of the First Geneva Conven-
tion . . . , assuming arguendo [its) applicability." Al Warafi v. Obama, 409 F. App'x 360, 361 (D.C.
Cir. 2011).
9. Stephen I. Vladeck, National Security Policy and the Role of Lawyering: Guantanamo and
Beyond: The D.C. Circuit after Boumediene, 41 SETON HALL LAW REVIEW 1451, 1466 (2011),
available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id= 1 838402##.
10. Al-Adahi v. Obama, 613 F.3d 1 102 (D.C. Cir. 2010).
1 1 . The panel in the Almerfedi decision (which reversed a district court's decision to grant
the habeas petition based on evidence that the detainee had spent a few months at the guesthouse
of an al Qaeda-associated organization in Pakistan and had traveled in an eastward direction
within Iran (i.e., toward Afghanistan and away from Europe) carrying several thousand dollars)
appeared to suggest that a "minimum threshold of persuasiveness" or "credible evidence" stan-
dard for an initial showing, which could be rebutted by petitioner, might be sufficient under the
Supreme Court's Hamdi ruling. Almerfedi v. Obama, 654 F.3d 1, 9-10 (D.C. Cir. 201 1).
12. Rasul v. Bush, 542 U.S. 466 (2004).
13. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
14. Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009).
15. INTERPRETIVE GUIDANCE, supra note 1, at 22-26, 48-64.
16. As indicated above, there are multiple issues not addressed here that may have a bearing
on the lawfulness of targeting operations, including the threshold at which armed violence can
be deemed an "armed conflict," the level of cohesion that is required in order to deem an organi-
zation an "organized armed group," the circumstances under which an organized armed group
can be said to be engaged in armed conflict, the geographic scope of armed conflicts and the cir-
cumstances in which legal rules outside the law of armed conflict may be relevant.
17. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3.
18. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 609.
19. The United States is not a party to either of the Additional Protocols (and has expressed
continuing significant concerns about Additional Protocol I), but it draws guidance where ap-
propriate from relevant provisions of both instruments. See Gregory Nickels, U.S. Senior Advi-
sor to the 65th General Assembly, Statement on Agenda Item 82: Status of the Protocols
Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of
Armed Conflicts, in the 6th Committee (Oct. 18, 2010), availa hie at http://usun.state.gov/briefing/
statements/20 1 0/ 1 49784.htm. The United States has affirmed its intention to proceed toward the
ratification of Additional Protocol II. See White House, Fact Sheet: New Actions on Guan-
tanamo and Detainee Policy 3 (Mar. 7, 2011), http://www.whitehouse.gov/the-press-office/
20 1 1 /03/07/new-actions-guantanamo-bay-and-detainee-policy.
20. Commentary on the Additional Protocols of 8 June 1977 to the Geneva
CONVENTIONS OF 12 AUGUST 1949 \ 4789 (Yves Sandoz, Christophe Swinarski 8c Bruno Zim-
mermann eds., 1987) (emphasis added).
2 1 . The question of whether an individual is liable to attack for either reason is separate from
the question of whether that individual should benefit from combatant immunity, and also the
192
Stephen Pomper
question of whether an individual may be detained (as the scope of detention authorities in
armed conflict is different from the scope of targeting authorities).
22. As discussed below, there is a range of views on whether individuals who pass the mem-
bership threshold lose their civilian status (and are therefore unprivileged belligerents) or re-
main civilians but are deemed to be continuously taking a direct part in hostilities and
accordingly continuously lose their protections from being made the object of attack.
23. There is a range of views about the specific level of doubt that would preclude action
from being taken.
24. There is a range of views with respect to the significance of combat support and combat
service support in assessing membership.
25. There is a range of views with respect to the significance of combat support and combat
service support in assessing membership.
26. There is a range of views about the extent to which indications of formal membership
(such as swearing an oath of loyalty) may be considered.
27. Under this view, factors relevant to whether an individual ceases to be liable to attack be-
cause of direct participation in hostilities include (but are not limited to) the amount of time that
has passed since the last relevant act, and whether there are concrete and verifiable facts or per-
suasive indicia that the individual has affirmatively foresworn taking a direct part in hostilities.
193
PARTY
MEANS AND METHODS IN NON-
INTERNATIONAL ARMED CONFLICTS
IX
Differences in the Law of Weaponry
When Applied to Non-International Armed
Conflicts
William H. Boothby*
Introduction
It is sensible to pose the question whether there is a meaningful distinction be-
tween the weapons law that applies during international armed conflict and
that which governs hostilities during a non-international armed conflict. After all,
philosophically, it could be argued that there is no rational basis for such a distinc-
tion. Why, the rhetorical question would go, should it be legitimate to expose in-
dividuals during a civil war to injuring mechanisms that have been found to be
unacceptable for employment during wars between States? 1 If this is seen as a plea
that the law applicable in these classes of conflict be merged, that is not the pur-
pose of this article. Rather, the intent in what follows is to consider whether there
are in fact such differences in the law as it is, to identify the precise extent of any
such divergences and to ask whether they make sense.
* Air Commodore, Royal Air Force. The views expressed in this article represent the views of the
author in his personal capacity and are not intended to reflect the views of the Royal Air Force,
the United Kingdom Ministry of Defence or the United Kingdom government.
The Law of Weaponry When Applied to Non-International Armed Conflicts
Fundamental Principles and the Conventional Weapons Convention
So, is there still a meaningful weapons law distinction between non-international
armed conflict and international armed conflict? Well, the fundamental principles
prohibiting weapons that are of a nature to cause superfluous injury or unneces-
sary suffering 2 and weapons that are indiscriminate by nature 3 apply equally in
both types of conflict. For the seventy- five States 4 that have ratified the 2001 exten-
sion in scope of the Conventional Weapons Convention (CCW), 5 the Conven-
tion's scope and thus that of its protocols extend to both types of conflict.
Amended Protocol II (AP II) 6 to the CCW always did, of course, apply to both
categories of conflict. 7 Equally, the Chemical Weapons Convention, 8 the Biological
Weapons Convention, 9 the Ottawa Convention 10 and the Cluster Munitions Con-
vention 11 were all drafted as arms control treaties in that they prohibited a range of
activities that went significantly beyond mere use of the relevant weapons. Thus, by
prohibiting possession of such weapons and by including undertakings to never
under any circumstances assist, encourage or induce in any way anybody to engage
in any activity prohibited to a State party, 12 the use of these weapons was effectively
prohibited in non-international as well as in international armed conflicts.
Expanding Bullets
It is not, however, correct to say that the whole of the rest of weapons law applies
equally to both classes of armed conflict — indeed in certain important details that
is not currently the case. Expanding bullets pose particular and complex issues in
this regard. Let us therefore at this point consider that specific munition and the
particular issues that have been brought into sharp focus as a result of a recent in-
ternational conference.
The Kampala Review Conference for the Rome Statute of the International
Criminal Court adopted on June 10, 2010, by consensus, Resolution 5, which
amended Article 8(2) (e) of the Statute. It achieved this by inserting additional of-
fenses under the heading of "other serious violations of the laws and customs ap-
plicable in armed conflicts not of an international character, within the established
framework of international law." 13 Those additional offenses are the following:
(xiii) Employing poison or poisoned weapons;
(xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices;
198
William H. Boothby
(xv) Employing bullets which expand or flatten easily in the human body, such as
bullets with a hard envelope which does not entirely cover the core or is pierced
with incisions. 14
The reference to "the established framework of international law" makes it clear
that the States that adopted this provision by consensus were asserting that the
listed activities, when conducted in the course and context of an armed conflict not
of an international character, constitute activities that, in their view, are offenses
only if they were committed in such a way as is prohibited by the existing frame-
work. The significance of that implicit assertion, of course, is that, so far as those
States are concerned, these activities constitute offenses irrespective of whether the
perpetrator's State has ratified this addition to the Rome Statute, if the activities
themselves breach international law and amount to war crimes. 15 There would not
appear to be any controversy about that assertion as it applies to the poison, poi-
soned weapons, asphyxiating and poisonous gas, and analogous liquids, materials
or devices provisions. International law already prohibits the use of such weapons
by any State in both international and non-international armed conflicts 16 and we
can safely also conclude that the use of those weapons in such conflicts is an offense
under customary international law. 17
However, the position in relation to expanding bullets is rather more complex.
In negotiating the third Hague Declaration of 1899, 18 the plenipotentiaries agreed
"[t]o abstain from the use of bullets which expand or flatten easily in the human
body, such as bullets with a hard envelope which does not entirely cover the core or
is pierced with incisions." 19 When negotiated, the Declaration was subject to a gen-
eral participation clause such that it only applied to a war between States party and
ceased to apply if a non-party State joined the conflict. 20
Hays Parks has made the point that militaries of all nations used only full-metal-
jacketed bullets before and after the adoption of the Declaration, mainly because
they were the only ones that would function reliably when fired from military
weapons. 21 He therefore speculates whether compliance was due to law of war con-
siderations or military reliability concerns.
But there is a wider matter to consider here. Christopher Greenwood has re-
portedly expressed doubts that the 1899 Declaration was customary law. He con-
sidered the matter in relation to the distinction principle. He was contemplating
the type of expanding ammunition that may be more accurate or less likely to rico-
chet or over-penetrate than full-metal-jacketed ammunition, thus reducing the
risks to innocent civilians during urban or counterterrorist operations. In such cir-
cumstances, he wondered whether some increased potential for injury to the com-
batant or terrorist target would necessarily amount to superfluous injury. The
199
The Law of Weaponry When Applied to Non-International Armed Conflicts
thought he was putting forward was that the protection of civilians under the prin-
ciple of distinction in those circumstances might outweigh considerations of addi-
tional injury to the targeted individual. 22
To take this analysis one stage further, in particular military circumstances ex-
panding bullets may be the weapon of choice, for example, in order to stop a terrorist
from detonating a bomb or abducting a hostage or in other similar circumstances. 23
Expanding Bullets under Customary Law
However, the International Committee of the Red Cross (ICRC), in its Customary
International Humanitarian Law study, finds the following rule: "The use of bullets
which expand or flatten easily in the human body is prohibited." 24
The ICRC study asserts that this customary rule applies in both international
and non-international armed conflicts. 25 One difficulty with the ICRC's formula-
tion is that the phrase "bullets which expand" can be interpreted in a number of
ways. It could mean "bullets which are designed, or designed or adapted, in order
to expand," or "bullets which in the normal or intended circumstances of their use
will normally or inevitably expand" or even "bullets which are capable of expand-
ing." While there is no doubt that there is a rule of customary law in relation to ex-
panding bullets, one may doubt that that rule has been correctly formulated in the
ICRC study. On balance, it would seem most likely that any such rule would be
based on the design purpose and intent of the weapon, rather than on how it
might behave in unspecified but perhaps particular circumstances. In short, the
design purpose is to be preferred to the effects as the basis for any customary rule,
which should also, the author would suggest, be linked to the superfluous injury/
unnecessary suffering principle in its application in both categories of conflict.
Interestingly, the ICRC study acknowledges that several States have decided to
use such ammunition in domestic law enforcement operations. 26 Kenneth Watkin,
in a 2006 article, indicates that rather more States have done this than the word
"several" would indicate. 27 The ICRC asserts, however, in the customary law study
that the use of such ammunition by police forces occurs in situations other than
armed conflict and that the bullets are fired from firearms which deposit less en-
ergy than a rifle bullet. 28
The purpose, of course, for using such bullets in domestic law enforcement will
usually be to stop the individual quickly and before he has the opportunity to act in
a potentially extremely damaging way. The range and circumstances of use of the
weapon by law enforcement officers may or may not be different from the circum-
stances in which members of the armed forces would be inclined to use such weap-
ons. There is also, of course, the point that, for a number of countries, the weapons
and ammunition used by members of the armed forces are likely to be substantially
200
William H. Boothby
the same as those used by the internal security or police force. The ICRC has, in its
customary law study, frequently argued that rules that apply in international
armed conflict in the field of weapons law also apply in non-international armed
conflict because the weapons used by the armed forces are the same in both types of
conflict. 29 While that may not necessarily be a particularly convincing argument,
nevertheless, it would seem illogical to take that line and then, in the next breath, as
it were, to suggest that different rules on expanding bullets apply as between police
forces and armed forces units, recognizing as one must that in many States the
weapons used, and sometimes even the users, are the same.
Expanding Bullets at the Kampala Conference
When the Kampala Conference delegates adopted the additions to Article 8 that we
have been discussing, they inserted into the Resolution the following important
preambular paragraph:
Considering that the crime referred to in article 8, paragraph 2(e) (xv) (employing bul-
lets which expand or flatten easily in the human body), is also a serious violation of the
laws applicable in armed conflict not of an international character, and understanding
that the crime is committed only if the perpetrator employs the bullets to uselessly
aggravate suffering or the wounding effect upon the target of such bullets, as reflected
in customary international law . . . . 30
When we seek to interpret this paragraph, we should start by noting in a posi-
tive sense that it usefully suggests that the offense is only committed in non-
international armed conflicts if the bullets are used "to uselessly aggravate." The
implication is, therefore, that if there is military utility attached to the additional
injury or suffering — for example, in the sense discussed earlier — then the offense
will not have been committed. The important question to consider is whether this
implication is made legally effective by the language of the preamble and of the
relevant element of crime. Of course, if this preambular language and the element
of crime are interpreted by the Court as restricting the circumstances in which the
use of such ammunition constitutes an offense under the Rome Statute, this
would be of fundamental importance. In order to determine whether the
preambular language and the element of crime are legally effective in this sense,
we must therefore consider first the law which the Court is obliged to apply and
thereafter the legal significance of the elements of crimes.
Applicable Law under the Rome Statute
The Rome Statute prescribes the law that the International Criminal Court (ICC)
shall apply in the following terms:
201
The Law of Weaponry When Applied to Non-International Armed Conflicts
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and
Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and
rules of international law, including the established principles of the international
law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national laws of
legal systems of the world including, as appropriate, the national laws of the States
that would normally exercise jurisdiction over the crime, provided that those princi-
ples are not inconsistent with this Statute and with international law and internation-
ally recognized norms and standards. 31
The effect of this language is that the Court is obliged to take into account the el-
ements of the crime of using expanding bullets in a non-international armed con-
flict when interpreting that offense for the purposes of proceedings before the
Court. Because of the effect of Article 9 of the Statute, however, the Court is not
specifically required to apply the elements, merely to take them into account. 32
The elements of the war crime of employing prohibited bullets are prescribed in
paragraph 3 of Annex II to the Resolution of the Kampala Conference and, so far as
relevant, include the following: "The perpetrator was aware that the nature of the
bullets was such that their employment would uselessly aggravate suffering or the
wounding effect." 33
This language, which a judge of the ICC considering a prosecution for such an
offense would be obliged to take into account, makes it clear that the offense is only
made out if the person concerned knew that the employment of the ammunition
would uselessly aggravate suffering or wounds. Such aggravation is not useless if
there is a corresponding military purpose for it. This would be the case, for exam-
ple, if expanding ammunition is used to target a hostage taker, hijacker or suicide
bomber in circumstances where the resulting instant disabling of the targeted indi-
vidual is essential to protect civilians.
Putting that aspect to one side for a moment, a careful analysis of the
preambular words may be interpreted by some as implying that the use of such
bullets in all circumstances in the context of a non-international armed conflict
breaches international law. Such an interpretation may suggest the Kampala dele-
gates intended that while the prohibition applies in all circumstances during non-
international armed conflicts, the preambular caveat only apply to the offense pro-
vision. However, such a conclusion applies in the light of the more fundamental
concerns discussed above.
202
William H. Boothby
Significance of the Kampala Preamble and Associated Element of the Crime
Paragraph 3 of the elements of the crime in relation to expanding bullets is there-
fore of vital importance. It should indeed be borne in mind that established human
rights norms may be breached if, in circumstances other than armed conflict, the use
of high-velocity ammunition would be less discriminating than expanding bullets,
e.g., because of greater over-penetration or ricochet risks that needlessly put civil-
ians in the vicinity at enhanced risk. 34
Equally, the customary principle of distinction arguably comes into play in the
manner referred to earlier and as noted by Christopher Greenwood. Indeed, it is
difficult to believe that customary international law should be regarded as prohib-
iting a weapon that is more likely to be effective in protecting the innocent in cir-
cumstances of acute danger than less apparently legally controversial high- velocity
ammunition.
Returning to the broader theme of this article, the main point to note is that ex-
panding bullets seem to represent a limited point of distinction between the law
applicable in international and non-international armed conflicts. In international
armed conflict the offense under the Rome Statute is also tied to superfluous injury
and unnecessary suffering by the application of a similar element of crime to that
appearing in the annex to the Kampala Resolution. However, the treaty prohibi-
tion, which, as we have seen, applies only in the case of international armed con-
flicts, make no such reference to superfluous injury or unnecessary suffering. 35
Equally, it remains to be seen what approach the ICC will adopt in interpreting the
Resolution, in particular with respect to the words of the preamble and of the ele-
ment of the crime. While the 1969 Vienna Convention's rules on interpretation of
treaties 36 would suggest the need to interpret the main body of the Resolution by
reference to the preambular words as text adopted by the participants at the Con-
ference, there can be no certainty that a Court, confronted by proceedings under
the Statute for an offense alleged to have been committed in a non-international
armed conflict, will do so. 37
Extension of the Scope of the Conventional Weapons Convention
The CCW provides another point of difference between the law applicable in inter-
national and that in non-international armed conflicts that, although fairly obvi-
ous, is nevertheless worthy of mention — namely, that the CCW protocols (other
than AP II) apply equally to both classes of conflict only for States that have ratified
the relevant protocol and the 2001 extension of scope. For the States that have not
ratified the scope extension, protocols to which that State is party will continue
only to apply in international armed conflicts. This has the equally obvious result
203
The Law of Weaponry When Applied to Non-International Armed Conflicts
that fewer States are bound by those rules with respect to non-international armed
conflict, which may, but will not necessarily, have the effect that the achievement of
a customary rule based on the language of a particular protocol may happen more
quickly in respect to international than non-international armed conflict. This
would clearly suggest that the ICRC should have been rather more hesitant when
finding customary weapons law rules applying in non-international armed conflict
based on the relatively recently adopted CCW protocols and on the CCW exten-
sion of scope.
The Natural Environment
Something should be said about the natural environment. Under the Convention
on the Prohibition of Military or Any Other Hostile Use of Environmental Modifi-
cation Techniques (ENMOD), 38 States party undertake not to engage in military or
any other hostile use of environmental modification techniques having wide-
spread, long-lasting or severe effects as the means of destruction, damage or injury
to any other State party. 39 If the technique is not employed by a State party or if the
destruction, damage or injury is not applied to another State party, it is at face value
hard to see how this provision is engaged. Accordingly, this would seem to be an-
other treaty provision that applies in armed conflicts between States but not in an
armed conflict that is internal to a single State.
While the ENMOD was concerned with the use of the environment as a
weapon, the focus of Articles 35 and 55 of 1977 Additional Protocol I (AP I) 40 was
on collateral damage to the environment resulting from an attack directed at some
other objective. These articles apply to weapons and means of warfare and, thus,
are also provisions that form part of the law of weaponry. It is well understood that
these provisions are one of the reasons for the U.S. decision not to ratify the
treaty. 41
Putting that to one side, the fact remains that for States that are party to AP I, the
treaty rules apply only in an international armed conflict. The ICRC in Rule 43
of its Customary International Humanitarian Law study suggests that there are
rules that protect the environment as a matter of customary law and that these
rules apply in international and in non-international armed conflict. 42 In the same
rule the ICRC finds an additional sub-rule requiring that methods and means of
warfare must be employed with due regard for the protection and preservation of
the natural environment. The rule goes on to require that in the conduct of mili-
tary operations, all feasible precautions must be taken to avoid and, in any event, to
minimize incidental damage to the environment. 43 The ICRC adds as a further ele-
ment to the rule that a party to the conflict is not absolved from taking such
204
William H. Boothby
precautions by lack of scientific certainty as to the environmental effects of certain
military operations. In the associated commentary, however, the editors conclude
that while State practice supports the conclusion that these are customary rules
applicable in international armed conflicts, their status as customary rules in
non-international armed conflicts is "arguable." So, while it is clear that there is a
difference in the application of the treaty rules, the position at customary law is the
subject of some controversy.
Weapons Procurement and Expanding Bullets
Given budgetary constraints on weapons procurement by States, it is foreseeable
that weapons procured for law enforcement purposes will increasingly be made
available for use by armed forces personnel, such use being not necessarily re-
stricted to a law enforcement context. The author acknowledges that the custom-
ary nature of the expanding bullets prohibition was readily and widely accepted
until relatively recently. However, the advent in more recent years of certain re-
sponses to asymmetric inferiority, such as aircraft hijacking, suicide bombing, hos-
tage taking or command detonation of devices directed at civilian infrastructure
targets, is liable to render expanding ammunition the weapon of choice for police
or armed forces personnel seeking to respond effectively to such challenges. Such
asymmetric activity may be criminal in nature, or it may foreseeably be employed
by or at the direction of a party to an armed conflict, for example, a State, in fur-
therance of its strategic war aims. It seems most unlikely, however, that a less effec-
tive response than expanding ammunition will be employed by States simply
because the particular context may be regarded as hostilities associated with an in-
ternational armed conflict. Equally, it is inconceivable that the authorities will
pause in what is likely to be an urgent, highly charged and dangerous situation in
order to debate the existence and status of any associated armed conflict and, thus,
the nature of the applicable rule.
If States in any significant number do retain expanding ammunition for use in
the context of international armed conflict in the sense discussed in the preceding
paragraphs, or indeed if such use occurs on any regular basis, the continued exis-
tence of the customary rule will become, at the very least, questionable and, per-
haps, unsustainable. States party to the 1899 Declaration would, of course, remain
bound thereby. Arguably, however, practice of States party to the Declaration that
is contrary to its provisions would be rather potent evidence that the treaty is being
overtaken by events, a circumstance not unknown in the law of weaponry. 44
205
The Law of Weaponry When Applied to Non-International Armed Conflicts
Do These Differences Make Sense?
Now that we have established that differences in the law applicable in our two
classes of conflict exist, the final question to pose is whether such differences make
sense. Here we return to the issue posed at the beginning of this short piece.
Should, indeed, the law that is designed to limit the sufferings of combatants and to
seek to ensure that the law of distinction is properly complied with differ between
conflicts confined to a State and conflicts not so confined? But perhaps that is the
wrong question. Alternative, and perhaps altogether more revealing, questions are
these:
• How long will it be before all States party to the CCW ratify the 2001 scope
extension?
• How long before the thinking that underpins ENMOD is seen by States to be
equally applicable when the conflict occurs within the boundaries of a single nation?
• How long before the points we have discussed in relation to expanding bul-
lets are seen to have resonance in international and non-international armed con-
flict, not just in relation to the Rome Statute offenses?
• And how long before States that accept the environmental rules in AP I do so
with regard to both classes of conflict?
States are and will remain in charge of the process of creating international law
and it is States that therefore will determine the answers to these questions. Legal
developments in recent years as noted above suggest that the process of legal con-
vergence is under way. It will, however, be for individual States to decide whether
to regard that process as complete.
In conclusion, while the general trend seems to be toward convergence, achiev-
ing complete convergence would require a collective willingness among States and
the limited adjustment of some detailed legal interpretations. It remains to be seen
whether States see this as a priority and whether State practice develops so as to
bring about complete convergence.
Notes
1. Indeed, elementary considerations of humanity and common sense make it pre-
posterous that the use by States of weapons prohibited in armed conflicts between
themselves be allowed when States try to put down rebellion by their own nationals
on their own territory. What is inhumane, and consequently proscribed, in interna-
tional wars, cannot but be inhumane and inadmissible in civil strife ....
Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory Appeal
on Jurisdiction, ^ 1 19 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
206
William H. Boothby
2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts art. 35.2, June 8, 1977, 1 125 U.N.T.S. 3
[hereinafter AP I] ("It is prohibited to employ weapons, projectiles and material and methods of
warfare of a nature to cause superfluous injury or unnecessary suffering"). This is a rule of cus-
tomary law which therefore binds all States and which the International Committee of the Red
Cross customary law study found to apply in both international and non-international armed
conflicts, l Customary International Humanitarian Law, Rule 70 at 237 (Jean-Marie
Henckaerts & Louise Doswald-Beck eds., 2005) [hereinafter ICRC Study]. Under the rule, the
legitimacy of a weapon must be determined by comparing the nature and scale of the generic
military advantage to be anticipated from the use of the weapon in the applications for which it is
designed to be used with the pattern of injury and suffering associated with the normal, intended
use of the weapon. See further William J. Fenrick, The Conventional Weapons Convention: A
Modest but Useful Treaty, 279 INTERNATIONAL REVIEW OF THE RED CROSS 498, 500 (1990); W.
Hays Parks, Means and Methods of Warfare, 38 GEORGE WASHINGTON INTERNATIONAL LAW
REVIEW 511, 517 n.25 (2006); WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED
CONFLICT 55-68 (2009).
3. The prohibition of indiscriminate attacks is restated in Article 5 1 (4) of Additional Proto-
col I. The innovation of that provision was to spell out what indiscriminate attacks are, namely:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a
specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be
limited as required by [the] Protocol; and consequently, in each such case, are of a
nature to strike military objectives and civilians or civilian objects without distinction.
AP I, supra note 2.
This rule is also reflective of customary law and was found by the ICRC study to apply in both
international and non-international armed conflicts. See ICRC Study, supra note 2, Rule 71 at
244. It is really paragraphs (b) and (c) in the treaty text that provide the rule as it applies in weap-
ons law.
4. ICRC Treaty Database, http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/
IHL_and_other_related_Treaties.pdf (last visited March 22, 2012).
5. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weap-
ons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct.
10, 1980, 1342 U.N.T.S. 137. The Convention, on adoption, applied to international armed con-
flicts covered by Common Article 2 to the 1949 Geneva Conventions. By virtue of an extension
in scope agreed to at the 2001 CCW Review Conference, the Convention and its protocols now
apply, for the States that ratify the extension, to the non-international armed conflicts referred to
in Common Article 3 to the 1949 Conventions.
6. Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps
and Other Devices (Amended Protocol II), May 3, 1996, S. Treaty Doc. No. 105-1 (1997). See
Alicia H. Petrarca, An Impetus of Human Wreckage?: The 1996 Amended Landmines Protocol, 27
California Western International Law Journal 205 (1996).
7. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts art. 1(2), June 8, 1977, 1125
U.N.T.S. 609.
207
The Law of Weaponry When Applied to Non-International Armed Conflicts
8. Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, Jan. 13, 1993, 1974 U.N.T.S. 45 [hereinafter
Chemical Weapons Convention].
9. Convention on the Prohibition of the Development, Production, and Stockpiling of
Bacterial (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T.
583, 1015 U.N.T.S. 163.
10. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211 [hereinafter
Ottawa Convention].
11. Convention on Cluster Munitions, Dec. 3, 2008, 48 INTERNATIONAL LEGAL MATERIALS
357 (2008).
12. See, e.g., Ottawa Convention, supra note 10, art. l(l)(c).
13. Rome Statute of the International Criminal Court art. 8(2)(e), July 17, 1998, 2187
U.N.T.S. 90 [hereinafter Rome Statute].
14. Review Conference of the Rome Statute of the International Criminal Court, Kampala,
Uganda, May 3 1-June 1 1, 2010, Amendments to Article 8 of the Rome Statute, RC/Res.5, Annex
I (June 16, 2010), available at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.5-ENG
.pdf [hereinafter Article 8 Amendments].
1 5. The author is grateful to Professor Charles Garraway, a member of the UK delegation to
the Rome Diplomatic Conference, for his clarification of this issue.
16. ICRC Study, supra note 2, Rule 72 at 251, Rule 74 at 259.
1 7. However, riot control agents are prohibited as a method of warfare, but their use remains
lawful when, during an armed conflict, international or otherwise, they are not being used as a
method of warfare. Chemical Weapons Convention, supra note 8, art. 5.
18. Hague Declaration (IV, 3) Concerning Expanding Bullets, July 29, 1899, 1 AMERICAN
JOURNAL OF INTERNATIONAL LAW (Supp.) 157, 157-59 (1907) [hereinafter Expanding Bullets
Declaration].
19. See id., first operative paragraph.
20. The second and third operative paragraphs of the Expanding Bullets Declaration, id.,
provide: "The present Declaration is only binding for the contracting Powers in the case of a war
between two or more of them. It shall cease to be binding from the time when, in a war between
the contracting Powers, one of the belligerents is joined by a non-contracting power."
21. W. Hays Parks, Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF
INTERNATIONAL HUMANITARIAN LAW 55, 69 (2005).
22. Comments attributed to Professor Greenwood during a keynote speech at Legal Aspects
of Current Regulations, Third International Workshop on Wound Ballistics (Mar. 28-29, 2001),
reported by Parks, id. at 89-90 n.23.
23. BOOTHBY, supra note 2, at 147 n.4.
24. ICRC Study, supra note 2, Rule 77 at 268.
25. Id.
26. Id. at 270.
27. Kenneth Watkin, Chemical Agents and Expanding Bullets: Limited Law Enforcement Ex-
ceptions or Unwarranted Handcuffs?, 36 ISRAEL YEARBOOK ON HUMAN RIGHTS 43, 52 (2006).
28. ICRC Study, supra note 2, at 270. It is worth noting that the UK's Manual of the Law of
Armed Conflict does not list expanding bullets among the weapons prohibited in non-international
armed conflicts, although weapons of a nature to cause superfluous injury or unnecessary suffer-
ing are SO listed. UNITED KINGDOM MINISTRY OF Defence, The Manual of the Law of
ARMED CONFLICT J 15.28 (2004). See also BOOTHBY, supra note 2, at 147 n.4.
208
William H. Boothby
29. ICRC Study, supra note 2, at 246, 2nd paragraph under "Non-international armed
conflicts."
30. Article 8 Amendments, supra note 14, preambular para. 9.
31. Rome Statute, supra note 13, art. 21(1).
32. Article 9 provides that the elements "shall assist the court" in interpreting the crimes in
the Statute. This seems to have been intended by those who negotiated the treaty as qualifying the
Article 21 requirement to apply, inter alia, the elements. The effect on international law of these
two provisions will be determined by applying the Article 31, Vienna Convention interpretation
rules. Vienna Convention on the Law of Treaties, May 23, 1969, 1 155 U.N.T.S. 331 [hereinafter
Vienna Convention].
It seems to the author that it will, in practice, be for the judges of the Court to decide whether
the Article 2 1 requirement to apply and the Article 9 assertion that the elements shall assist pro-
duce an ambiguity of meaning or a clarity that the elements are non-binding or, indeed, a clarity
that they are binding. The interpretation reflected in this article is coherent with that understood
during the negotiations and the author is grateful to Professor Garraway for clarifying these
matters.
33. Article 8 Amendments, supra note 14, Annex II.
34. An analogy may be drawn with the European Court of Human Rights decision in Giileg
v. Turkey. The Court said:
The Court, like the Commission, accepts that the use of force may be justified in the
present case under paragraph 2 (c) of Article 2 [of the European Convention], but it
goes without saying that a balance must be struck between the aim pursued and the
means employed to achieve it. The gendarmes used a very powerful weapon because
they apparently did not have truncheons, riot shields, water cannon, rubber bullets or
tear gas. The lack of such equipment is all the more incomprehensible and unacceptable
because the province of §irnak, as the Government pointed out, is in a region in which a
state of emergency has been declared, where at the material time disorder could have
been expected.
Giileg v. Turkey, 1998-IV Eur. Ct. H.R. H 71.
There seem to be two important aspects to this case. The first was the use of one type of
weapon because the alternative, impliedly preferable, weapon was not available. It seems that it
was the potential lethality of the weapon that was used that was a crucial consideration. The final
cited sentence suggests, furthermore, that riot control equipment should have been made avail-
able as the authorities should have understood the nature of domestic emergencies in §irnak. It
may, however, have been equally appropriate to provide both types of weapon there because of a
history of armed clashes in that area.
35. Paragraph 3 of the elements of the war crime of employing prohibited bullets contrary to
Article 8(2)(b)(xix) of the Rome Statute is as follows: "The perpetrator was aware that the nature
of the bullets was such that their employment would uselessly aggravate suffering or the wound-
ing effect." International Criminal Court, Elements of Crimes, U.N. Doc. ICC-ASP/1/3 (Sept. 9,
2002).
36. Vienna Convention, supra note 32, art. 31(1)— (2).
37. The argument against referring to the preamble for interpretative purposes would assert
that Article 31 of the Rome Statute exhaustively lists the law to be applied by the Court, absent
ambiguity, and that there is no such ambiguity in the expanding bullets provision in the Kampala
Resolution.
38. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques, May 18, 1977, 31 U.S.T. 333, 1 108 U.N.T.S. 151.
209
The Law of Weaponry When Applied to Non-International Armed Conflicts
39. ML, ait 1(1).
40. Supra note 2.
4 1 . See, e.g. , Memorandum from W. Hayes Parks, Michael F. Lohr, Dennis Yoder & William
Yoder for Mr. John H. McNeill, Assistant General Counsel (International), Office of the Secre-
tary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International
Law Implications (May 8, 1986); Michael J. Matheson, The United States Position on the Relation
of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2
American University Journal of International Law and Policy 419 (1987).
42. ICRC Study, supra note 2, Rule 43 at 143. The rule asserts, non-controversially, that the
general principles on the conduct of hostilities apply to the natural environment, but then states:
A. No part of the natural environment may be attacked, unless it is a military objective;
B. Destruction of any part of the natural environment is prohibited, unless required by
imperative military necessity; C. Launching an attack against a military objective which
may be expected to cause incidental damage to the environment which would be exces-
sive in relation to the concrete and direct military advantage anticipated is prohibited.
These suggested rules seem to go somewhat beyond the rules in AP I. It may be argued that there
is not yet sufficient depth and generality of State practice to support all of the sub-rules as
drafted.
43. Id., Rule 44 at 147.
44. For an example of a treaty whose operative provision was overtaken by events consider
the 1868 St. Petersburg Declaration. Declaration Renouncing the Use, in Time of War, of Explo-
sive Projectiles Under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297.
210
X
Methods and Means of Naval Warfare in
Non-International Armed Conflicts
Wolff Heintschel von Heinegg*
Introduction
The law of naval warfare is part of the larger body of law applicable to interna-
tional armed conflicts. 1 Accordingly, it applies to an armed conflict between
two or more States, including conflicts involving State-sponsored forces. 2 Whether
the law of naval warfare also applies to situations of non-international armed con-
flicts is a contentious issue. Therefore, the distinction between international and
non-international armed conflicts is important when it comes to the applicability
of the law of naval warfare to a particular armed conflict.
Unfortunately, the distinction between international and non-international
armed conflicts is less clear than it seems at first glance. On the one hand, the "facts
on the ground" may make it difficult to draw the line of demarcation between the
two. 3 Additionally, international scholars have taken quite different positions. For
some, the distinctive criterion is the identity of the parties to the conflict, with the
issue being whether or not those parties qualify as States under public interna-
tional law. 4 For others, it is not the identity of the parties alone, but also the geog-
raphy of an armed conflict; they are prepared to apply the law applicable to
international armed conflict to any case in which armed conflict "crosses the bor-
ders of the state," 5 even if one of the parties is a non-State actor. 6 Still others believe
that the distinction has become irrelevant, because, they maintain, the formerly
* Professor of Public Law, Europa-Universitat Viadrina, Frankfurt (Oder), Germany.
Methods and Means of Naval Warfare in Non-International Armed Conflicts
separate bodies of law have merged into a single body of law applying equally to
both international and non-international armed conflict. 7
With regard to the alleged merger, it is acknowledged that there has been a
remarkable development of the law of non-international armed conflict during
the last decade. Some treaties no longer distinguish between international and
non-international armed conflicts. 8 The concept of war crimes, until recently
strictly limited to international armed conflicts, has been introduced into the law
of non-international armed conflict. 9 Still, it is doubtful whether that develop-
ment justifies the conclusion that the two bodies of law have merged. First, those
treaties that do not distinguish between international and non-international
armed conflict have not become customary international law. Second, one of the
prime references relied upon by the International Criminal Tribunal for the for-
mer Yugoslavia when addressing international and non-international armed con-
flict issues, the German Humanitarian Law in Armed Conflicts Manual is under
revision. The first edition did not distinguish between the two; however, the forth-
coming second edition will contain a separate section on non-international armed
conflicts. Third, those who advocate a merger focus on the obligations and prohi-
bitions imposed upon the parties to the conflict. In other words, they maintain
that in both international and non-international armed conflict the parties are in-
creasingly bound by the same rules, while ignoring the fact that the law of interna-
tional armed conflict offers belligerents certain rights, especially vis-a-vis the
nationals of other States (neutrals). This especially holds true for the law of naval
warfare, which provides for prize measures, blockade and various maritime zones.
It is doubtful that the proponents of merger would be prepared to accept the exer-
cise of the full spectrum of belligerent rights during a non-international armed
conflict, even if exercised only by the State actor.
Those who focus on the identity of the parties to the conflict to determine the
nature of the conflict are correct insofar as a non-international armed conflict pre-
supposes that at least one party to the armed conflict is a non-State actor. This does
not mean, however, that geography is irrelevant. To the contrary, according to
Common Article 3, which appears in each of 1949 Geneva Conventions, the armed
conflict must occur "in the territory of one of the High Contracting Parties." 10 Ar-
ticle 1(1) of 1977 Additional Protocol II applies to "all armed conflicts which take
place in the territory of a High Contracting Party." 11 Hence, it cannot be denied
that non-international armed conflict is characterized by a territorial element.
Those who take the position that an international armed conflict comes into ex-
istence as soon as there is a trans-border element seem to base that position on a lit-
eral reading of the provisions of Common Article 3 and Additional Protocol II.
However, mere "spillover effects" into the territory of another State do not
212
Wolff Heintschel von Heinegg
necessarily change the character of a non-international armed conflict into that of
an international armed conflict as long as the governments concerned refrain from
hostilities against each other. 12
Differences of opinion on how to characterize a conflict increase if the situation
under scrutiny does not easily fit into one of the traditional categories, as, for in-
stance, the armed conflicts in Gaza and in Afghanistan/Pakistan. Very often the
different approaches to distinguishing international from non-international
armed conflicts seem to be guided by desired result rather than by a sober analysis
of customary international law. Although the different characterization ap-
proaches are interesting, this article is not designed to provide further criteria of
distinction nor to add yet another category of armed conflict to the existing catego-
ries of international and non-international. It starts, therefore, with the premise
that the law of international armed conflict applies
• "whenever there is a resort to armed force between States"; 13
• if the non-State actors in a non-international armed conflict obtain recogni-
tion of belligerency by the government; 14 or
• for States parties to Additional Protocol I, 15 if the conditions of Article 1 (4)
are fulfilled.
In those armed conflicts the law of naval warfare undoubtedly applies, at least
insofar as measures taken by the State party to the conflict are concerned. The non-
State party to the conflict may also apply methods and means of naval warfare
against its State enemy. However, the non-State actor may not interfere with neu-
tral shipping unless the neutral State has — either explicitly or implicitly — recog-
nized it as a belligerent.
A non-international armed conflict exists whenever there is "protracted armed
violence between governmental authorities and organized armed groups or be-
tween such groups within a State." 16 The focus of the present article is on the ques-
tion of whether, and to what extent, the parties to a non-international armed
conflict are entitled to exercise belligerent rights under the law of naval warfare.
The first part gives a short overview of nations' practice involving the use of meth-
ods and means of naval warfare during non-international armed conflicts. The sec-
ond part addresses the question of a geographical limitation of the hostilities. The
third part deals with the conduct of hostilities and the fourth part discusses mea-
sures taken by the parties to the conflict that interfere with the shipping and/or avi-
ation of other States. It will be shown that the law of naval warfare can be applied to
non-international armed conflicts, albeit partly modified, between the parties to
the conflict. If, however, the parties interfere with the shipping and/or aviation of
213
Methods and Means of Naval Warfare in Non-International Armed Conflicts
other States beyond the outer limit of the State party's territorial sea or contiguous
zone, an additional legal basis for the measures in question must be found.
Part I. Practice
A. American Civil War
The blockade during the American Civil War is an important example of applying
the law of naval warfare to a non-international armed conflict. It must be borne in
mind, however, that the declaration of the blockade by President Abraham Lincoln
was considered as recognition of belligerency, 17 thus triggering the applicability of
the law of blockade and of the law of naval warfare. Moreover, the British gov-
ernment had proclaimed its neutrality, thus also recognizing a state of belliger-
ency between the United States and the Confederate States. 18 Accordingly, the
blockade of the American Civil War serves as a precedent only in a limited manner
for the general applicability either of the law of blockade or of the law of naval war-
fare to non-international armed conflicts. Nevertheless, it needs to be emphasized
that, although recognition of belligerency has occurred only infrequently in recent
State practice, it continues to exist as a legal concept. 19 Moreover, as illustrated by
the blockade of the Confederate States, recognition of belligerency may be explicit
or implicit.
B. Spanish Civil War
During the Spanish Civil War (1936-39) a number of merchant vessels of various
nationalities supplying the government forces were attacked by aircraft and
submarines. The identity of the State or group to which the attacking aircraft and
submarines belonged is uncertain; however, it is clear that it was not a party to the
conflict. 20 In response, nine States, including the United Kingdom and France,
concluded the 1937 Nyon agreements 21 and decided on collective measures against
submarines, surface vessels and aircraft that were, or that were suspected of being,
engaged in unlawful attacks against merchant vessels. For the purposes of the pres-
ent paper, the treatment of those attacks as "acts of piracy" is unimportant. It
should be noted, however, that the parties to the Nyon Arrangement in the pream-
ble emphasized that they were not "in any way admitting the right of either party to
the conflict in Spain to exercise belligerent rights or to interfere with merchant
ships on the high seas even if the laws of warfare at sea are observed." Therefore, it
is probably correct to state that "despite the scale of hostilities involved and the de-
gree of international intervention on both sides . . . , no European state conceded to
any party to the conflict any right to interfere with neutral shipping." 22
214
Wolff Heintschel von Heinegg
C. Algeria
Both prior to and during the conflict between France and Algerian groups seeking
independence, France instituted an extensive maritime control zone in the Medi-
terranean. Acting under a decree of March 17, 1956, 23 the French Navy intercepted
more than 2,500 ships per year 24 in an effort to prevent the flow of arms to rebels in
Algeria. 25 According to Articles 4 and 5 of that decree, vessels of less than one hundred
tons were liable to visit and search inside the "customs zone" that extended fifty
kilometers off the Algerian coast. 26 After 1958, vessels of more than one hundred
tons were also subjected to visit and search. Whereas most of the measures were
taken within fifty kilometers of the Algerian coast, a number of vessels were visited
well beyond the "customs zone." 27 Vessels were diverted when boarding was im-
possible due to adverse weather conditions or the nature of the cargo, including
cargo consisting of arms and explosives. In the latter case, the cargo was confis-
cated unless it was determined that the arms and/or explosives were not to be used
in a manner that constituted a danger to French forces in Algeria. 28 In most in-
stances, the ships were released. The French measures that met sharp protests of
the affected flag States were justified by reference to the rights of self-defense and
self-preservation. 29
D. Sri Lanka
The armed conflict in Sri Lanka (1983-2009) was characterized by a considerable
naval element. The "Sea Tigers" — the naval wing, which was established in 1984, of
the Tamil Tigers — proved to be a serious threat to government forces. According
to unconfirmed reports, the Sea Tigers deployed small suicide boats and fast patrol
boats that sank twenty-nine government fast patrol boats and attacked naval bases
of the Sri Lankan Navy. The Sea Tigers did not limit their operations to enemy
forces, but also interfered with innocent shipping in the Indian Ocean. As a result,
on May 14, 2007, the Indian Navy announced that it would increase its presence in
the Palk Strait and deploy unmanned aerial vehicles in the region. 30
In December 2004, demands were made in India to neutralize the Sea Tigers be-
cause they had become a "credible third naval force in the southern part of South
Asia." 31 In 1984 and again in 2009, the Sri Lankan government forces were alleged
to have established naval blockades against parts of the coastline controlled by the
Tamil Tigers. However, those references to naval blockade are misleading. The
measures taken by the government forces in 1984 were indeed aimed at preventing
entry and exit to and from the coastal area, but their main purpose was to prevent
the Tamil Tigers from receiving both training and equipment from the southern
Indian state of Tamil Nadu. Additionally, the maritime interdiction operations oc-
curred within the Sri Lankan territorial sea and contiguous zone, and were directed
215
Methods and Means of Naval Warfare in Non-International Armed Conflicts
against vessels suspected of being engaged in smuggling weapons or supplies to the
Tamil Tigers. The Sri Lankan government did not assert the right to interfere with
all neutral vessels encountered in high seas areas. 32 The so-called "blockade" of the
Mullaitivu coast in 2009 was part of a major military operation against the head-
quarters of the Sea Tigers that eventually resulted in its neutralization. Again, the
Sri Lankan armed forces did not claim any right to interfere with neutral shipping.
E. Gaza
On August 13, 2008, the Shipping Authority at the Israeli Ministry of Transport
published a Notice to Mariners calling upon shipping to refrain from entering the
territorial waters off the Gaza coast. 33 That measure was considered inadequate,
and was followed on January 3, 2009 by a Minister of Defense-ordered naval
blockade of the coast of the Gaza Strip that extended to a maximum distance of
twenty nautical miles from the coast. The Notice to Mariners advising of the estab-
lishment of the blockade provided: "All mariners are advised that as of 03 January
2009, 1700 UTC, Gaza maritime area is closed to all maritime traffic and is under
blockade imposed by Israeli Navy until further notice. Maritime Gaza area is en-
closed by the following coordinates. . . ." 34 The notice was published on the
websites of the Israel Defense Force, the Shipping and Ports Authority and the
Ministry of Transport, and on several standard international channels, such as
NAVTEX, an international satellite network that collects and distributes notices to
vessels worldwide. Moreover, this notice was broadcast twice a day on the emer-
gency channel for maritime communications to vessels that sailed within three
hundred kilometers of the Israeli coast. On May 31, 2010, the so-called "Gaza flo-
tilla," including the Mavi Marmara, was intercepted. 35
F. Libya
The 201 1 conflict in Libya was a "mixed" conflict. On one hand, it was a non-
international armed conflict between the government forces loyal to Gaddafi and
the rebels. On the other hand, it was an international armed conflict between
Libya and the international alliance that exercised certain belligerent rights on the
basis of UN Security Council Resolution 1973. 36 For the purposes of this article, it
is irrelevant whether the measures taken by the alliance were in compliance with
the terms of the resolution. During the conflict, NATO warships intercepted sev-
eral boats operated by Gaddafi forces that were laying anti-shipping mines outside
the harbor of Misurata, a city that was dependent for much of its food and supplies
on the sea link with the rebel capital Benghazi. British Brigadier Rob Weighill, di-
rector of NATO operations in Libya, condemned the minelaying by stating: "We
have just seen Gaddafi forces floating anti-ship mines outside Misurata harbour
216
Wolff Heintschel von Heinegg
today. It again shows his complete disregard for international law and his willing-
ness to attack humanitarian delivery efforts." 37
Part II. Region of Operations
A. Internal Waters and Territorial Sea
As non-international armed conflicts occur within a State, 38 the parties to the con-
flict are not prohibited from conducting hostilities in that State's internal waters
and territorial sea, as those are defined by the law of the sea. As long as the parties to
the conflict do not interfere with the navigation of other States, they may apply
methods and means of naval warfare against their adversary in those sea areas.
At the same time, however, other States continue to enjoy the right of innocent
passage. There is no indication in either treaty law or State practice that the right
of innocent passage is automatically suspended at the commencement of a non-
international armed conflict. Rather, the general rules continue to apply. The
coastal State, under Article 25(3) of the 1982 United Nations Convention on the
Law of the Sea (LOS Convention), 39 may in certain circumstances temporarily
suspend innocent passage in specified parts of its territorial sea. To be effective,
the suspension must be "duly published."
The reference to "weapons exercises" in Article 25(3) as a basis for suspending
the right of innocent passage is not the exclusive circumstance in which suspension
may occur. The article goes on to indicate that suspension may occur when "essen-
tial for the protection of its [the coastal State's] security." In determining whether
such suspension is essential, the coastal State enjoys a wide margin of discretion. 40
The existence of a non-international armed conflict certainly constitutes a threat to
the coastal State's security; hence, the authorities of the coastal State are entitled to
suspend the right of innocent passage in order to prevent foreign shipping from
navigating in close vicinity to the conflict area. In view of a lack of conclusive State
practice, it is unclear whether innocent passage maybe suspended in the entire ter-
ritorial sea. While suspension in a State's entire territorial sea would appear to be
inconsistent with Article 25(3)'s "in specified areas," the circumstances of a given
non-international armed conflict may be such that the government considers it
necessary to close the entire territorial sea to foreign navigation. If, however, the
armed hostilities are limited to a certain region, it would be difficult for the
government to justify a suspension of the right of innocent passage in coastal sea
areas remote from the area of operations.
The non-State party to a non-international armed conflict is not entitled to sus-
pend or otherwise interfere with the right of innocent passage. This clearly follows
from the wording of Article 25(3) ("The coastal State may . . ."). 41 If the non-State
217
Methods and Means of Naval Warfare in Non-International Armed Conflicts
party nevertheless takes measures affecting foreign shipping, the authorities of the
coastal State under Article 24(2) must "give appropriate publicity to any danger to
navigation, of which it has knowledge, within its territorial sea." 42 The government
is not obligated to actively take measures with a view to protecting foreign naviga-
tion against interference by the non-State party to the conflict.
B. International Straits and Archipelagic Sea Lanes
Neither the government nor, a fortiori, the non-State party to a non-international
armed conflict is entitled to interfere with the rights of transit passage and of
archipelagic sea lanes passage within international straits and archipelagic waters.
Even during an international armed conflict the belligerents are obliged to preserve
those passage rights. 43 There is no indication in State practice that the existence of a
non-international armed conflict would entitle the government to adopt laws and
regulations relating to passage that are in excess of that permissible under the law of
the sea. In particular, there maybe no suspension of transit passage even if the exer-
cise of navigation or overflight were dangerous to the transiting vessel or aircraft.
As is the case with dangers to navigation within the territorial sea, the authorities of
the States bordering an international strait and the archipelagic State are obliged to
give "appropriate publicity to any danger to navigation or overflight." 44 And,
again, the government is not obliged to take active measures against the non-State
party to the conflict in order to protect international navigation and aviation.
C. Sea Areas beyond the Territorial Sea
The government of the State concerned is entitled to exercise maritime interdic-
tion/interception operations within its contiguous zone if the conditions of Article
33 45 of the LOS Convention are met. Hence, the "special naval surveillance zone"
established and enforced by Sri Lankan government forces in 1984 and the mea-
sures taken against foreign vessels that were engaged in smuggling weapons and
supplies to the Tamil Tigers were "justified under ordinary customs and policing
powers available within 24 nautical miles of Sri Lanka's baselines." 46
State practice seems to provide sufficient evidence that there is no rule of custom-
ary international law prohibiting the parties to a non-international armed conflict
from engaging in hostilities against each other in high seas areas. As in an interna-
tional armed conflict, there is, however, a positive obligation to pay due regard for
the rights enjoyed by other States. 47 Moreover, the parties are prohibited from
damaging submarine cables and pipelines that do not exclusively serve either party
to the conflict. 48
Hostile actions taken within the exclusive economic zone or on the continental
shelf of another State during a non-international conflict are more questionable.
218
Wolff Heintschel von Heinegg
While the law of international armed conflict contains no prohibition on con-
ducting hostilities in those areas, 49 it is doubtful whether this also holds true for
non-international armed conflicts. In view of a lack of conclusive practice, it is not
possible to reach a clear conclusion on that issue. It is, however, safe to state that
measures taken by a non-State party to a non-international armed conflict within
the exclusive economic zone or on the continental shelf of another State will, in all
likelihood, not be tolerated by that State. This certainly will be the case if either
party to the conflict decides to lay naval mines in those areas. If such minelaying
occurs, the coastal State is entitled to remove or otherwise neutralize the mines.
Part III. Conduct of Naval Hostilities
This section addresses only relations between the parties to a non- international
armed conflict, and not their relations with non-parties. Its object is to determine
which rules of the law of naval warfare are applicable in a non-international armed
conflict by focusing on the rules and principles applicable to the methods and
means of naval warfare.
A. Entitlement
Under the law of international armed conflict, only warships are entitled to
exercise belligerent rights. 50 This rule goes back to the prohibition of privateering
under the 1856 Paris Declaration. 51 Warships are those vessels that meet the crite-
ria set forth in Articles 2-5 of the 1907 Hague Convention VII, 52 Article 8(2) of the
1958 High Seas Convention 53 and Article 29 of the LOS Convention. 54 Limitations
on the exercise of belligerent rights are most important with regard to interference
with neutral navigation and aviation; thus, neutral vessels and aircraft must accede
to such interference only if the measures are taken by warships.
No such limitation applies to non-international armed conflicts vis-a-vis the
parties. 55 It follows from the object and purpose of the rule limiting the exercise of
belligerent rights under the law of naval warfare — i.e., the transparent entitlement
of the warship — that the non-State actor will obviously not have ships that meet
the criteria for classification as a warship since one of the criteria is that it be a State
vessel. The government forces may make use of any vessel or aircraft, including, for
example, those used for law enforcement and customs enforcement, in the con-
duct of hostilities. This may not be the case, however, if the government takes mea-
sures against foreign shipping. I will return to that issue. 56
219
Methods and Means of Naval Warfare in Non-International Armed Conflicts
B. Lawful Targets
Under the international law of non-international armed conflict, members of the
regular armed forces, dissident armed forces and an organized armed group
formed by the non-State party to a non-international armed conflict are lawful tar-
gets. 57 The International Committee of the Red Cross's (ICRC's) Interpretive Guid-
ance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law provides that members of organized armed groups "consist
only of individuals whose continuous function is to take a direct part in hostilities
('continuous combat function')." 58 The Interpretive Guidance provides that "con-
tinuous combat function" "requires lasting integration into an organized armed
group acting as the armed forces of a non-State party to an armed conflict." 59 Per-
sons that accompany or support an organized armed group but "who assume ex-
clusively political, administrative or other non-combat functions" are civilians
who have "protection against direct attack unless and for such time as they directly
participate in hostilities." 60 Members of the regular armed forces, however, regard-
less of the function they serve 61 are not considered to be civilians and are subject to
direct attack. This introduction of a double standard is not practicable in the con-
text of armed conflicts. It would have been preferable had the Interpretive Guidance
accepted the conclusion of the ICRC's Customary International Humanitarian Law
study which rightly states, "Such imbalance would not exist if members of orga-
nized armed groups were, due to their membership, either considered to be con-
tinuously taking a direct part in the hostilities or not considered to be civilians." 62
In the context of the Libyan conflict, the Libyan rebels were lawful targets at that
point when the rebellion against the Gaddafi government passed the threshold to
become a non-international armed conflict. They were not protected under Secu-
rity Council Resolution 1973, which afforded protection to civilians, but not to
members of organized armed groups. Civilians, more generally under the law of
non-international armed conflict, are not subject to direct attack unless (and for
such time as) they take a direct part in hostilities. 63 Thus, civilians, who would oth-
erwise have been entitled to protection, who directly participated in the hostilities
by attacking either the Gaddafi or the rebel forces became lawful targets during
their period of participation as well.
When it comes to objects — which are, of course, the focus of naval operations —
it is generally agreed that the definition set forth in Article 52(2) of Additional
Protocol I is customary in character and thus applies to both international and
non-international armed conflicts. 64 All objects that have an "intrinsic military sig-
nificance" are to be considered lawful military objectives "by nature." 65 Hence, the
military equipment, such as fast patrol boats and ammunition depots, or military
headquarters of either party may be attacked at all times. For instance, the vessels
220
Wolff Heintschel von Heinegg
used by the Sea Tigers for naval operations, as well as their stronghold in
Mullaitivu, were lawful targets. The same holds true for the military equipment of
the Sri Lankan government forces. 66 All other objects, although of a civilian nature,
may become lawful military objectives by either their use, purpose or location.
It follows from the foregoing that civilians and civilian objects may not be di-
rectly attacked. 67 Moreover, the parties to a non-international armed conflict are
obliged to always distinguish between members of armed forces or organized
armed groups and civilians, and between military objectives and civilian objects. 68
Civilians are those who are neither members of an organized armed group nor
directly participating in the hostilities. 69 Civilian objects are objects that do not
constitute a military objective under the customary international law definition. 70
In a non-international armed conflict, it may be difficult to clearly establish
whether an individual is a member of an organized armed group or a civilian or
whether an object constitutes a military objective or a civilian object. For instance,
the parties are under no obligation to use vehicles that are marked or otherwise
clearly identifiable as military in nature. This does not render the rules on lawful
targets and the principle of distinction obsolete; it simply increases the difficulty in
applying them.
C. Use of Naval Mines
As was seen in the Libyan conflict, the use of naval mines by the forces loyal to
Gaddafi was condemned as being in "complete disregard for international law." 71
That statement, however, referred to interference with "humanitarian delivery
efforts"; Resolution 1973 required Libyan authorities to "take all measures to pro-
tect civilians and meet their basic needs, and to ensure the rapid and unimpeded
passage of humanitarian assistance." 72 In the absence of Resolution 1973, it would
have been difficult to condemn the laying of naval mines as a violation of interna-
tional law or of the law of non-international armed conflict had Libyan authorities
publicized their employment. The mines were laid within the Libyan territorial sea
and their purpose seems to have been to prevent supplies from reaching Misurata
via the sea. Such conduct does not violate the law applicable to non-international
armed conflict. Moreover, it would be difficult to conclude that the laying of naval
mines violated the prohibition of indiscriminate attacks or any specific prohibition
under the law applicable to such weapons or their use.
The fact that the mines were laid within the Libyan territorial sea is not alone
sufficient to determine that the establishment of the minefield accorded with the
applicable international law, however. A minefield certainly impedes upon the
right of innocent passage. As was seen earlier, any suspension of the right of inno-
cent passage requires prior notification, e.g., by issuing a Notice to Mariners. 73
221
Methods and Means of Naval Warfare in Non-International Armed Conflicts
Libyan authorities neither publicly announced the laying of mines nor issued a
warning to international shipping. Even if the mines were not directed against the
effort to deliver humanitarian supplies, but were employed merely as a method of
naval warfare applied against the rebels, the minelaying was still unlawful because
it was conducted in disregard of the right of innocent passage of other States.
The law of non-international armed conflict does not prohibit the laying of na-
val mines in the internal waters or in the territorial sea of the State. The law recog-
nizes that naval mines serve legitimate purposes, to include area denial, coastal
defense and maintaining and enforcing a blockade. 74 Of course, indiscriminate at-
tacks, i.e., "attacks that are not specifically directed" against lawful targets, 75 the use
of weapons that are indiscriminate by nature 76 and the indiscriminate use of weap-
ons 77 are prohibited both in international and in non-international armed conflict.
The fact that naval mines may equally hazard military objectives and civilian objects
is not sufficient in itself to conclude that the laying of mines is in violation of any of
these prohibitions. Moreover, the law of naval mine warfare contains a specific rule
on indiscriminate attacks, by explicitly prohibiting the use of "free-floating mines,
unless they are directed against a military objective and they become harmless
within an hour after loss of control over them." 78
If Misurata had constituted a rebel stronghold, it would have been lawful to cut
it off from outside resupply. However, the laying of naval mines by the Gaddafi
forces was illegal because it occurred in disregard of the obligation to take all feasi-
ble precautions for the safety of peaceful shipping 79 (the failure to provide notifi-
cation to the international community) and of the obligation to provide for
humanitarian relief consignments. With regard to relief consignments, the parties
to an armed conflict are obliged to provide for their free passage if the civilian
population is "inadequately provided with food and other objects essential for its
survival." 80 While this obligation originated in the law of blockade it is, I would as-
sert, customary in character as a specification of the principle of humanity.
In conclusion, the use of naval mines in non-international armed conflict nei-
ther is expressly prohibited nor ab initio violates the principle of distinction or the
rules of the law of non-international armed conflict prohibiting indiscriminate at-
tacks. It must be borne in mind, however, that this is true only if naval mines are
laid within the internal waters or, subject to prior notification, the territorial sea of
the State. In sea areas beyond the outer limit of the territorial sea, naval mines may
be used by the parties to a non-international armed conflict only if they are di-
rected against a military objective.
222
Wolff Heintschel von Heinegg
D. The Natural Environment
The Customary International Humanitarian Law study states that " [i]t can be argued
that the obligation to pay due regard to the environment [in international armed
conflicts] also applies in non-international armed conflict if there are effects in an-
other State." 81 Although the arguments are based on the law of peace, i.e., interna-
tional environmental law, this may be a correct statement of the law because there
is no rule of general international law that would absolve a State of its obligations
vis-a-vis other States under either general international law or international envi-
ronmental law merely because that State has become a party to a non-international
armed conflict.
Unfortunately, the study fails to be sufficiently clear as to who is bound by the
obligation to pay due regard. The commentary only refers to obligations of States;
it does not clarify whether non-State actors are also bound by it. The failure to
indicate that non-State actors are bound may be correct, because there are good
reasons to assume that the obligations under international environmental law ex-
clusively apply to States as subjects of international law.
Far more interesting than the reference to the obligation to pay due regard to the
natural environment beyond the territory of the State is the following conclusion
bythelCRC:
[T]here are indications that this customary rule [i.e., the duty to pay due regard] may
also apply to parties' behaviour within the State where the armed conflict is taking
place. Some support for drafting a treaty rule for this purpose existed during the nego-
tiation of Additional Protocol II. It was not adopted then, but the general acceptance of
the applicability of international humanitarian law to non-international armed con-
flicts has considerably strengthened since 1977. In addition, many environmental law
treaties apply to a State's behaviour within its own territory. There is also a certain
amount of State practice indicating the obligation to protect the environment that ap-
plies also to non-international armed conflicts, including military manuals, official
statements and the many submissions by States to the International Court of Justice in
the Nuclear Weapons case to the effect that the environment must be protected for the
benefit of all. 82
It is to be noted that this statement is characterized by cautious formulations —
"indications," "may also apply," "some support," "certain amount of State prac-
tice" — that indicate that the authors of the study are less than convinced of the cor-
rectness of their assumptions. In any event, those formulations do not distract
from the suggestion that the authors were guided by their political and ecological
aspirations, rather than by a sound analysis of State practice. State practice during
non-international armed conflicts does not provide sufficient evidence to
223
Methods and Means of Naval Warfare in Non-International Armed Conflicts
determine that the parties to the conflict are obliged to take into consideration — or
to pay due regard to — the natural environment of the State in which the conflict is
occurring.
It should also be noted that there still is no generally accepted definition of the
term "natural environment." 83 But even if there were agreement that, for example,
certain sea areas or marine living resources constitute "natural environment," this
would not have an impact on the lawfulness of naval operations during a non-
international armed conflict that have, or may have, detrimental effects on the
marine environment of the State concerned.
Part IV. Interference with the Navigation of Other States
The law of non-international armed conflict contains no prohibitions going be-
yond those applying to land or air operations with regard to naval operations of the
parties that occur within the internal waters and the territorial sea of the State party
to the conflict so long as they do not interfere with the navigation of other States.
State practice during the Spanish Civil War and the Algerian conflict seems to
provide convincing evidence that the parties to a non-international armed conflict
are not allowed to interfere with the navigation of other States in sea areas beyond
the outer limit of the territorial sea (unless such measures are lawful under the law
of the sea or general international law). This finding is certainly correct as concerns
measures taken by non-State actors. As regards interference by government forces
one author has taken the position that
the right of states to implement measures against neutral vessels in NIACs is thus at
best an unsettled question. The most one can say is that in higher- intensity conflicts
states have sometimes acknowledged or acquiesced in blockades targeting non-state
actors However, in equally violent conflicts such a right has sometimes not been rec-
ognised and attempts to assert rights of blockade or similar measures have been pro-
tested (for instance, the Spanish Civil War and the Algerian rebellion). Where such
measures are protested as contrary to international law those protests must weigh
against the conclusion that there is opinio juris supporting the rule of custom invoked.
On the basis of relevant state practice one can at most hazard a suggestion that irrespec-
tive of the precise classification of a conflict, states are likely to tolerate the assertion of a
blockade only in cases of higher-intensity conflicts on a par with the traditional under-
standing of war. 84
A. Neutral Vessels and Aircraft as Lawful Targets
It must be emphasized that the doubts expressed with regard to the authority of the
State party to a non-international armed conflict to interfere with neutral vessels
224
Wolff Heintschel von Heinegg
and aircraft have only concerned measures short of attack, i.e., visit, search and
capture, and blockade. To date there has been no study addressing the question of
whether foreign vessels and aircraft may qualify as lawful targets under the law of
non-international armed conflict.
If the definition of lawful military objectives in an international armed conflict
also applies in non-international armed conflict, 85 there is no convincing reason
that would justify its limitation to vessels and aircraft of the nationality of the State
concerned. Accordingly, any vessel, regardless of the flag it is flying, and any air-
craft, wherever registered, used by an organized armed group in the course of a
non-international armed conflict for military purposes constitute lawful military
objectives by either their nature or use. If, for instance, another State comes to the
assistance of the government forces, the warships and military aircraft deployed by
that State will qualify as lawful military objectives by their nature. If the govern-
ment of the State party makes use of vessels operated by a private military/security
company that flies the flag of another State, that vessel will be a lawful target by rea-
son of its use. In such cases, it does not make a difference whether the vessel or air-
craft is encountered in the territorial sea or national airspace or in sea areas beyond
the outer limit of the territorial sea or in international airspace. It is unimaginable
that the parties to a non-international armed conflict will refrain from attacking
such vessels or aircraft simply because they have departed the territorial sea or
national airspace. It is equally unimaginable that other States will protest attacks on
such vessels and aircraft on the sole basis of the attacks' occurring on the high seas
or in international airspace.
The correctness of these findings cannot be questioned even in view of the prac-
tice of States during the Spanish Civil War, during which the parties to the 1937
Nyon agreement were not prepared to recognize a right of the parties to that
armed conflict "to exercise belligerent rights or to interfere with merchant ships on
the high sea even if the laws of warfare at sea are observed." 86 The fact that those
States were not prepared to recognize the exercise of belligerent rights, including
attacks on neutral merchant vessels qualifying as lawful targets, does not mean that
the law of non-international armed conflict is the same today. While the law as it
stood in 1937 may have contained a prohibition preventing the parties to a non-
international armed conflict from exercising belligerent rights on the high seas,
this is no longer the case under the contemporary law of non-international armed
conflict. The customary definition of lawful military objectives contains no excep-
tions for objects that have the nationality of foreign States.
225
Methods and Means of Naval Warfare in Non-International Armed Conflicts
B. Visit, Search and Capture
The interceptions of foreign vessels conducted by the French Navy during the Al-
gerian conflict met strong resistance from affected flag States. France, however, was
less than impressed and continued to intercept foreign merchant vessels for years.
O'Connell rightly observes that since the nineteenth century there had not
been such an extensive invasion — for security reasons — of the principle of the freedom
of the seas as in the case of the Algerian operation. The large number of ships affected,
and the large number of countries which became diplomatically involved, would have
led one to imagine that more attention would have been paid to this situation. Since
only a few ships had their cargoes removed, and those ships were clearly engaged in the
smuggling of arms into Algeria, the operation did not seriously affect the navigation of
the high sea, and this, together with the political situation prevailing, would seem to ex-
plain the reticence on the part of flag States of the ships affected with respect to demands
of the French government. The fact that France was able for so long and in so extensive a
manner to exercise naval power on the high seas on the ground of self-defence causes one
to ponder on the extent to which a conservative appreciation of international law has a
role in defence planning. 87
There is also the question of the Israeli blockade of Gaza. As will be discussed in
Part IV.C, it is the view of this author that the conflict should be classified as an in-
ternational armed conflict. However, it is also useful to consider what the legal po-
sition would have been if it were considered to be non-international in nature, as it
is by some scholars.
Beginning in 2008, and continuing until the establishment of the blockade of
the Gaza Strip on January 3, 2009, Israel exercised the right of visit and search in
order to prevent the flow of arms into the Gaza Strip. The few measures taken
against foreign vessels that were suspected, upon reasonable grounds, of being en-
gaged in the transportation of arms destined for Hamas did not give rise to strong
protests. Either the flag States implicitly recognized Israel's security interests or
they simply did not want to admit that ships flying their flags had been engaged in
the smuggling of arms and ammunition. Whatever the rationale, there is a clear
parallel to the Algerian operation insofar as security interests and the right of self-
defense may serve as a justification for interference with foreign shipping by the
State party to a non-international armed conflict.
Both the Algerian and Gaza conflicts seem to justify the conclusion that the State
party to a non-international armed conflict — not the non-State actor — is entitled
to intercept foreign vessels on the high seas if the following conditions are met:
( 1 ) vital security interests of the State are at stake;
226
Wolff Heintschel von Heinegg
(2) there are reasonable grounds for believing that the foreign vessels are en-
gaged in activities jeopardizing those security interests (e.g., by supplying
the non-State party with arms); and
(3) the measures are undertaken in close proximity to the conflict area.
It must be emphasized that the recognition of the right of interception (visit,
search and capture) does not imply recognition of the right to exercise measures
short of attack under prize law. Prize law stricto sensu only applies in international
armed conflicts. Rather, the legal basis is found in the right of self-defense or in the
customary right of self-preservation in order to protect the territorial and political
integrity of the State. This right is equally exercisable in an international or non-
international armed conflict. The finding by the International Court of Justice in
the Wall advisory opinion that the right of self-defense does not apply if there is no
trans-border element 88 has no basis in State practice.
C. Blockade: The Gaza Case
1. General Considerations
Unaddressed thus far is the question of whether the parties to a non-international
armed conflict are entitled to establish and enforce a naval or aerial blockade.
Blockades are, by necessity, established in international waters or international
airspace, apply to all vessels or aircraft regardless of their nationality, 89 and are dis-
tinguished from more limited actions such as measures undertaken with the objec-
tive of preventing exit from or entry into a given part of the coast or a port
controlled by the other party to a non-international armed conflict. These latter
measures do not qualify as a blockade under the law of armed conflict as long as
they are limited to the territorial sea of the State, or are not applied against foreign
vessels or aircraft.
As noted previously in the context of the American Civil War, it may be the
declaration of a blockade by the government as an implicit recognition of belliger-
ency of the non-State party to the conflict that triggers the applicability of the law
of international armed conflict and, thus, of the law of naval warfare. 90
If, however, the declaration of blockade cannot be understood as an implicit
recognition of belligerency — either because the concept is no longer recognized
as being part of the lex lata or because the circumstances surrounding the decla-
ration do not justify a conclusion to that effect — it is doubtful whether the State
party to a non-international armed conflict is entitled to establish and enforce a
blockade. One author who classifies the conflict between Israel and Hamas as a
227
Methods and Means of Naval Warfare in Non-International Armed Conflicts
non-international armed conflict has come to the conclusion that in view of the
sporadic, on-again, off-again nature of the hostilities, "Israel had no right to im-
pose a blockade on the Gaza Strip and its enforcement of that unlawful blockade
against the flotilla . . . was an act incurring state responsibility." 91 According to that
author's view, "there is no consistent state practice and opinio juris suggesting
blockade is available outside an [international armed conflict]." 92 While that
writer's opinion of the legality of the Israeli blockade is not shared by this author, it
is a correct statement of the contemporary law that, absent recognition of belliger-
ency, the parties to a non-international armed conflict are not entitled to establish
and enforce a naval or aerial blockade against foreign vessels or aircraft.
2. The Gaza Case
The legal classification of the Gaza conflict is a contested issue. Those international
lawyers who deal with the subject in a serious manner 93 and hold that Israel's
blockade of the Gaza Strip is illegal arrive at that conclusion because they charac-
terize the conflict as a non-international armed conflict. 94 Even if that characteriza-
tion is correct, their finding that the blockade is therefore unlawful does not
necessarily follow, because recognition of belligerency continues to be a valid con-
cept. The mere fact that a given rule or concept of international law has not been
made use of for an extended period does not mean that the rule or concept has be-
come void by reason of desuetude. 95 There is no evidence that States, by refraining
from recognizing a status of belligerency, have abolished that concept for good.
Rather, States are unwilling to bring into operation the legal consequences that
flow from a recognition of belligerency, but by the very study of the consequences
they acknowledge that the concept is alive and well.
However, while this author accepts that others have reached a contrary position,
the Gaza conflict cannot be classified as a non-international armed conflict. There
are convincing reasons to conclude that it is an international armed conflict in view
of the continuing belligerent occupation. 96 The Supreme Court of Israel does not
share this opinion, because, according to the Court, Israel, since the 2005 disen-
gagement, no longer exercises effective control over the Gaza Strip. 97 The Court,
however, takes the position that international humanitarian law applies to an
armed conflict between Israel and terrorist organizations not merely in an area that
is subject to occupation, but "in any case of an armed conflict of an international
character — in other words, one that crosses the borders of the state — whether or
not the place in which the armed conflict occurs is subject to a belligerent occupa-
tion." 98 Thus the Court reaches the same conclusion, albeit by a different route
than belligerent occupation.
228
Wolff Heintschel von Heinegg
The Turkel Commission, which was established by the Israeli government to
examine the circumstances surrounding the boarding of the Mavi Marmara on
May 31, 2010, concurred with the Supreme Court that the conflict in the Gaza
Strip is "international in character." 99 Additionally, the Commission took into
consideration (1) the degree of de facto control that Hamas exercises over the
Gaza Strip, (2) the significant security threat that Hamas presents, and (3)
Hamas's attempts to import weapons, ammunition and other military supplies by sea.
The Commission then concluded that it "would have considered applying the
rules governing the imposition and enforcement of a naval blockade even if the con-
flict between Israel and the Gaza Strip had been classified as a non-international
armed conflict." 100
The Palmer Report, which was prepared by the panel appointed by the UN
Secretary-General to examine the boarding of the Mavi Marmara, also concluded
that the conflict was international in nature, stating:
The Panel considers the conflict should be treated as an international one for the purposes
of the law of blockade. This takes foremost into account Israel's right to self-defence
against armed attacks from outside its territory. In this context, the debate on Gaza's
status, in particular its relationship to Israel, should not obscure the realities. The law
does not operate in a political vacuum, and it is implausible to deny that the nature of
the armed violence between Israel and Hamas goes beyond purely domestic matters. In
fact, it has all the trappings of an international armed conflict. 101
The findings of the Turkel Commission and the Secretary-General's panel lend
further support to the government of Israel's determination that it was entitled to
establish the naval blockade.
A naval blockade is a lawful method of naval warfare. 102 As such, it overrides the
peacetime right of all States to freely navigate in the high seas areas covered by the
blockade. 103 The blockading power is not only entitled to prevent vessels from either
entering or leaving the blockaded area, but, in fact, has an obligation to achieve that
goal by ensuring the blockade is effective. 104 The blockading power must use what-
ever means it has available to prevent entry and exit of all vessels; if it fails to do so
the blockade becomes ineffective and legally void. In other words, if the blockading
power permits some vessels to cross the blockade, while denying that ability to
other vessels, it is not effectively enforcing the blockade. In the absence of an effec-
tive blockade, any interference with the navigational rights of vessels would be un-
lawful. Hence, if the Israeli government wishes to maintain the naval blockade of
Gaza, it has no choice but to prevent all vessels from either entering or leaving the
blockaded area.
229
Methods and Means of Naval Warfare in Non-International Armed Conflicts
Under the international law of naval blockade, all vessels, irrespective of the flag
they fly, must be prevented from entering or leaving the blockaded area. In this in-
stance, if they breach the blockade by crossing the blockade line twenty nautical
miles off the Gaza coastline, or if they attempt to breach the blockade, they are lia-
ble to capture or to any other measure taken by blockading units to prevent a con-
tinuation of their voyage. 105
On some occasions it may be difficult to establish an attempt to breach the
blockade. That is not the case with the "Gaza flotilla." The organizers had expressly
stated their intent to breach the blockade and the vessels' approach to the block-
aded area constituted an attempted breach of blockade. Given the expressed intent
and the approach of the vessels, the Israeli Defense Force units did not need to wait
to act until the vessels were either close to the blockade line or crossing it. Rather,
they were entitled to take the necessary measures at a considerable distance because
the attempt to breach the blockade was obvious. 106
Vessels either breaching or attempting to breach a naval blockade must comply
with all legitimate orders by the blockading power. If summoned to stop they may
not continue their voyage nor attempt to escape. They are obligated to let a board-
ing team on the vessel and to allow the team to take control of the ship. Any act of
escape or resistance maybe overcome by the use of proportionate force, including,
if necessary, the use of deadly force. 107
Humanitarian considerations play a role in determining the lawfulness of a
blockade. A naval blockade is unlawful if "the damage to the civilian population is,
or may be expected to be, excessive in relation to the concrete and direct military
advantage anticipated from the blockade." 108 "Excessive" does not mean "exten-
sive." Applied to the blockade of the Gaza Strip, there can be no doubt that it has
resulted in inconveniences for the civilian population, but certainly not in exces-
sive damage. In this context it is important to note that the military advantage
gained, i.e., the prevention of the flow of arms and the entry of terrorists, is quite
substantial.
Moreover, the blockading power is obliged to provide for relief consignments
if the civilian population of the blockaded area is no longer adequately provided
with goods essential for its survival, i.e., with food, water and medical supplies. 109
The "Gaza flotilla" was allegedly on a purely humanitarian mission to provide the
civilian population in Gaza with such essential goods. It is immaterial whether this
was true, whether the cargoes indeed consisted of essential goods only or whether
the flotilla was only pursuing political and provocative goals. Even if the flotilla
had been on a purely humanitarian mission it would have had no right to ap-
proach the Gaza coastline. Rather, the blockading power could prescribe "the
technical arrangements, including search, under which the relief consignments are
230
Wolff Heintschel von Heinegg
permitted." 110 It is important to note that, in 2010, the Israeli government was pre-
pared to allow the shipment of the flotilla's cargo to Gaza under the condition that
it was unloaded in an Israeli port and its distribution entrusted to the United Na-
tions. That proposal was well in accordance with the applicable law. The mere
claim of pursuing humanitarian goals or to be a humanitarian organization does
not give rise to a right to breach a blockade. Any refusal to accept reasonable tech-
nical arrangements offered by the blockading power and any continuation of the
voyage without complying with the legitimate orders of the blockading power will
entitle the latter to take appropriate and proportionate measures, including the use
of force, to prevent the vessels from entering the blockaded area.
Conclusion
It has been shown that the parties to a non-international armed conflict are not
obliged to confine the armed hostilities to the land territory of the State and that
they may make use of recognized methods and means of naval warfare. As long as
the measures they take against each other have no detrimental impact on interna-
tional navigation and aviation there are no considerable legal obstacles.
While there seems to be widespread agreement that neither party to a non-
international armed conflict is entitled to interfere with foreign shipping and avia-
tion in sea areas beyond the outer limit of the territorial sea, the State party to a
non-international armed conflict continues to enjoy the right to enforce its do-
mestic law under the law of the sea. Moreover, it would be difficult to maintain
that the definition of lawful military objectives that undoubtedly applies in non-
international armed conflicts ceases to be valid merely by reason of the geograph-
ical position of the target. Hence, foreign vessels and aircraft that contribute to
the enemy's military action by, for example, providing targeting data are lawful
targets even if they are located on the high seas or in international airspace.
As regards measures short of attack, i.e., visit, search and capture, States seem to be
prepared to tolerate such measures if taken by the State party to a non-international
armed conflict, if vital security interests are at stake and if the interception measures
are taken in the vicinity of the coast. Similar considerations may apply if the State
party decides to establish and enforce a naval blockade.
Notes
l. San Remo Manual on International Law Applicable to armed Conflicts at
Sea 73 (Louise Doswald-Beck ed., 1995) ("although the provisions of this Manual are primarily
meant to apply to international armed conflicts at sea, this has intentionally not been expressly
231
Methods and Means of Naval Warfare in Non-International Armed Conflicts
indicated ... in order not to dissuade the implementation of these rules in non-international
armed conflicts involving naval operations").
2. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL
ARMED CONFLICT 26-28 (2d ed. 2010). For the latter aspect, see Prosecutor v. Tadic, Case No.
IT-94-1, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Juris-
diction, 1 70 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995) [hereinafter Tadic].
3. For an analysis of such "amorphous situations," see DINSTEIN, supra note 2, at 26.
4. See, e.g., NOAM LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE
ACTORS 103 (2010); Douglas Guilfoyle, The Mavi Marmara Incident and Blockade in Armed Con-
flict, 81 British Yearbook of International Law 17 1, 186-87 (201 1).
5. Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02, Judg-
ment (Dec. 13, 2006), 46 INTERNATIONAL LEGAL MATERIALS 373 (2007), available at http://
elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf [hereinafter Public Committee
against Torture].
6. This position is taken by Cassese, who maintains that "an armed conflict which takes
place between an Occupying Power and rebel or insurgent groups ... in an occupied territory
amounts to an international armed conflict." ANTONIO CASSESE, INTERNATIONAL LAW 420 (2d
ed. 2005).
7. This is the position taken in the German military manual. FEDERAL MINISTRY OF
DEFENCE (Germany), HUMANITARIAN LAW IN ARMED CONFLICTS MANUAL (1992). However,
in the forthcoming edition of the manual, there will be a separate section dealing with the law of
non-international armed conflict.
8. See, e.g., Amendment to the Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects, Doc. No. CCW/CONF/II/2 (Dec. 21, 2001).
9. See Rome Statute of the International Criminal Court art. 8(2)(c), July 17, 1998, 2187
U.N.T.S. 90. Additionally, in 1993 the International Committee of the Red Cross stated that "ac-
cording to humanitarian law as it stands today, the notion of war crimes is limited to situations of
international armed conflict." Some Preliminary Remarks by the International Committee of
the Red Cross on the Setting up of an International Tribunal (Feb. 22, 1993), reprinted in 2
Virginia Morris & Michael P. Scharf, An Insider's Guide to the International
Criminal Tribunal for the Former Yugoslavia 391, 392 (1995).
10. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of
Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the
Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287.
11. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.
12. DINSTEIN, supra note 2, at 27.
13. Tadic, supra note 2.
14. DINSTEIN, supra note 2, at 28.
15. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3.
1 6. Tadic, supra note 2. See also MICHAEL N. SCHMITT, CHARLES H.B. GARRAWAY & YORAM
Dinstein, The Manual on the Law of Non-international Armed Conflict with
232
Wolff Heintschel von Heinegg
COMMENTARY H LI. 1 (2006) [hereinafter NIAC MANUAL] ("Non-international armed conflicts
are armed confrontations occurring within the territory of a single State and in which the armed
forces of no other State are engaged against the central government.").
17. See Leslie C. Green, The contemporary law of armed conflict 343 n.l (2000).
18. Id.
19. Admittedly, scholars disagree on whether recognition of belligerency is still a valid legal
concept. For an analysis, see Yair M. Lootsteen, The Concept of Belligerency in International Law,
166 Military Law Review 109 (2000).
20. Norman J. Padelford, International Law and the Spanish Civil War, 31 AMERICAN
JOURNAL OF INTERNATIONAL LAW 226 (1937); George A. Finch, Piracy in the Mediterranean, 31
AMERICAN JOURNAL OF INTERNATIONAL LAW 659 (1937).
21. Nyon Arrangement, Sept. 14, 1937, 181 L.N.T.S. 135; Agreement Supplementary to the
Nyon Arrangement, Sept. 17, 1937, 181 L.N.T.S. 149. For the text of the agreements and an anal-
ysis by L.F.E. Goldie, see 1937 Geneva Agreement Supplementary to the Nyon Arrangement, mTHE
LAW OF NAVAL WARFARE 487-502 (Natalino Ronzitti ed.,1988).
22. Guilfoyle, supra note 4, at 192.
23. Decret 56/274, Journal Officiel (Mar. 17, 1956), at 2665.
24. The exact figures are unclear. Some report that 4,775 ships were searched in the first year
alone. See ROBIN R. CHURCHILL & ALAN V. LOWE, THE LAW OF THE SEA 217 (3d ed. 1999).
25. Laurent Lucchini, Actes de Contrainte Exerces par la France en Haute Mer au Cours des
Operations en Algerie, 1966 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 803. See also D.P.
O'Connell, International Law and Contemporary Naval Operations, 44 BRITISH YEARBOOK OF
International Law 19, 36-39 (1970).
26. Note that the distance was 50 kilometers, not 50 nautical miles.
27. The German Bilbao and the Bulgarian Chipka were visited in the English Channel, the
German Las Palmas twenty-two nautical miles south of Cape Vicent and the German Archsum
fifty- four nautical miles east of Gibraltar.
28. See ROLF OTTMULLER, DIE ANWENDUNG VON SEEKRIEGSRECHT IN MlLITARISCHEN
KONFLIKTEN SEIT 1945, at 137 (1978).
29. O'Connell, supra note 25, at 37-39.
30. Wary of Sea Tigers, India tightens security, REDIFF INDIA ABROAD (May 14, 2007), http://
www.rediff.com/news/2007/may/14ltte.htm.
31. India Must Neutralise Sea Tigers, THE HINDU (Dec. 12, 2004), http://www.hindu.com/
2004/ 1 2/ 1 2/stories/2004 1 2 1 206020400.htm.
32. Guilfoyle, supra note 4, at 193.
33. Notice to Mariners No. 6/2008 (Aug. 13, 2008), http://en.mot.gov.il/index.php?option
=com_content&view=article8cid=74:no62008&catid= 1 7:noticetomariners&Itemid= 1 2.
34. Notice to Mariners No. 1/2009 Blockade of Gaza Strip (Jan. 6, 2009), http://
1 99.203.58. 1 l/EN/index.php?option=com_content8cview=article&id= 1 24:no 1 2009&catid= 1 7
:noticetomariners&Itemid= 12.
35. For the facts of what has become known as the "flotilla incident," see U.N. Secretary-
General's Panel of Inquiry, Report on the 31 May 2010 Flotilla Incident, fflf 83-93 (July 201 1)
(Geoffrey Palmer et al.), available at http://www.un.org/News/dh/infocus/middle_east/
Gaza_Flotilla_Panel_Report.pdf [hereinafter Palmer Report].
36. S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
37. Libya: Nato intercepts boats laying mines outside Misurata, THE TELEGRAPH (United King-
dom) (Apr. 29, 2011), http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/
8483805/Libya-Nato-intercepts-boats-laying-mines-outside-Misurata.html.
233
Methods and Means of Naval Warfare in Non-International Armed Conflicts
38. See supra note 16 and text accompanying notes 12, 16.
39. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397
[hereinafter LOS Convention].
40. CHURCHILL & LOWE, supra note 24, at 87-88, 90.
41. Emphasis added.
42. Churchill & Lowe, supra note 24, at 100.
43. SAN REMO MANUAL, supra note 1, H 27. See also U.S. Navy, U.S. Marine Corps & U.S.
Coast Guard, The Commander's Handbook on the Law of Naval Operations H 9.2.3, NWP 1-
14M/MCWP 5-12.1/COMDTPUB P5800.7A (2007), available at http://www.usnwc.edu/
getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/l-14M_(Jul_2007)_(NWP [hereinaf-
ter Commander's Handbook].
44. LOS Convention, supra note 39, arts. 44, 54.
45. To "prevent infringement of customs, fiscal, immigration or sanitary laws within its ter-
ritory or territorial seas" or to "punish infringement of . . . [those] laws and regulations commit-
ted within its territory or territorial seas."
46. Guilfoyle, supra note 4, at 193.
47. San REMO MANUAL, supra note 1, 1 36.
48. Id.,^ 37.
49. M,H34, 35.
50. Id.A 13.21.
51. Declaration Respecting Maritime Law, Apr. 16, 1856, 115 C.T.S. 1, reprinted in THE
LAWS OF ARMED CONFLICTS 1056 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004).
52. Convention Relating to the Conversion of Merchant Ships into War-Ships, Oct. 18,
1907, 205 Consol. T.S. 319, reprinted in id. at 1066.
53. Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
54. See Commander's Handbook, supra note 43, \ 2.2.2.
55. Program on Humanitarian Policy and Conflict Research, Manual on
International Laws Applicable to Air and Missile Warfare j 17(a) (2009), available at
http://ihlresearch.org/amw/HPCR%20Manual.pdf ("Only military aircraft, including UCAVs,
are entitled to engage in attacks."). The commentary indicates, "Rule 17 (a) does not apply in
non-international armed conflict. States are more likely to employ law-enforcement and other
State aircraft during these conflicts. It is not in contravention with the law of international armed
if such aircraft conduct combat functions." Id. at 101.
There is a very limited exception in those instances when the States parties to a non-international
armed conflict are undertaking prize measures against enemy merchant vessels or civilian air-
craft. In those cases, only warships may exercise belligerent rights.
56. See infra Part IV.
57. See NIAC MANUAL, supra note 16, HI 1.1.2, 2.1.1. Although members of the State's
armed forces are lawful targets under the law of non-international armed conflict, members of
the dissident armed forces or an organized armed group who target them do not have combatant
immunity and are subject to prosecution under the State's domestic criminal law.
58. Nils Melzer, International Committee of the Red Cross, Interpretive Guid-
ance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law 27 (2009).
59. Id. at 34.
60. Id.
6 1 . Except for medical and religious personnel, who may not be targeted unless they take an
active part in hostilities. NIAC MANUAL, supra note 16, ^ 1.1.2.
234
Wolff Heintschel von Heinegg
62. l Customary International Humanitarian Law 21 (Jean-Marie Henckaerts &
Louise Doswald-Beck eds., 2005) [hereinafter CIHL].
63. MAC MANUAL, supra note 16, fflj 2.1.1.1, 2.1.1.2.
64. Id., % 1.1.4. See also CIHL, supra note 62, at 30-31.
65. See NIAC MANUAL, supra note 16, 1 1.1.4.3.
66. Such attacks are lawful under the international law of non-international armed conflict,
but, as with attacks on members of the armed forces, those who carry out the attacks are subject
to prosecution under the State's domestic law. See supra note 57.
67. NIAC MANUAL, supra note 16, 1 2.1.1.1; CIHL, supra note 62, at 5-8, 32-34.
68. See NIAC MANUAL, supra note 16, 1 1.2.2.
69. Id., 1 1.1.3; CIHL, supra note 62, at 19.
70. See NIAC MANUAL, supra note 16,11.1.5.
7 1 . See supra Part I.F.
72. S.C. Res. 1973, supra note 36, 1 6.
73. LOS Convention, supra note 39, art. 25(3).
74. See Commander's Handbook, supra note 43, 1 9.2. See also HOWARD S. LEVIE, MINE
WARFARE AT SEA (1992); Wolff Heintschel von Heinegg, The International Law of Mine Warfare
at Sea, 23 ISRAEL YEARBOOK ON HUMAN RIGHTS 53 (1993).
75. See NIAC MANUAL, supra note 16, J 2.1.1.3.
76. Id., % 2.2.1.1.
77. Id., 12.2.1.2.
78. San Remo MANUAL, supra note 1, 1 82.
79. See Heintschel von Heinegg, supra note 74, at 62.
80. SAN REMO MANUAL, supra note 1, 1 103. See also Guilfoyle, supra note 4, at 198-200.
81. CIHL, supra note 62, at 148.
82. Id. at 149.
83. Some prefer a comprehensive approach and tend to equate the natural environment
with an "ecosystem." Accordingly, components of the natural environment, such as flora,
fauna, the lithosphere or the atmosphere, would only be covered by the term if they interact in
a way that they may be considered part of an interdependent and mutually influencing system
of diverse components of the natural environment. In contrast, others are prepared to con-
sider components of the natural environment to be specially protected by the law of armed
conflict, irrespective of their interdependence with other components. The only common de-
nominator is that the term "natural environment" does not cover man-made components of
the environment.
84. Guilfoyle, supra note 4, at 193-94.
85. See supra text accompanying notes 64-66.
86. Nyon Arrangement, supra note 21, pmbl.
87. O'Connell, supra note 25, at 38-39.
88. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136,1 139 (July 9) ("The Court also notes that Israel exercises con-
trol in the Occupied Palestinian Territory and that . . . the threat which it regards as justifying the
construction of the wall originates within, and not outside, that territory. The situation is thus
different from that contemplated by Security Council resolutions 1368 (2001) and 1373
(2001) Consequently, the Court concludes that Article 51 of the Charter has no relevance in
this case.").
235
Methods and Means of Naval Warfare in Non-International Armed Conflicts
89. See Wolff Heintschel von Heinegg, Blockade, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL Law (Riidiger Wolfrum ed, 2010), http://www.mpepil.com/subscriber _article?script
=yes&id=/epil/entries/law-9780 19923 1690-e2528crecno=3&author=Heintschel von Heinegg Wolff.
90. See supra Part LA.
9 1 . Guilfoyle, supra note 4, at 2 1 7.
92. Id.
93. It is interesting to note that a 2009 report submitted to the Human Rights Council does
not contain a legal analysis under the law of naval blockade. See U.N. Human Rights Council,
Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations
Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/ 12/48 (Sept. 25, 2009) (Richard
Goldstone).
94. Guilfoyle, supra note 4, at 178-91.
95. For the concept of desuetude, see, e.g., Michael J. Glennon, How International Law Dies,
93 Georgetown Law Journal 939 (2005).
96. see yoram dlnstein, the international law of belligerent occupation 276-
83 (2009).
97. See HCJ 9132/07 Al-Bassiouni v. Prime Minister 1 12 [Jan. 30,2008] (unpublished), avail-
able at http://www.mfa.gov.U/NR/rdonlyres/938CCD2E-89C7-4E77-B071-56772DFF79CC/0/
HCJGazaelectricity.pdf.
98. Public Committee against Torture, supra note 5.
99. Jacob Turkel et al., 1 The Public Commission to Examine the Maritime Incident
of 31 May 2010, 1 41 (2011), available at http://turkel-committee.gov.i1/files/wordocs//
8707200211english.pdf.
100. Id., 1 44.
101. Palmer Report, supra note 35, 1 73.
102. SAN REMO MANUAL, supra note 1, Iflj 93-104; Commander's Handbook, supra note 43, 1
7.7.
103. For the relationship between the law of the sea and the law of naval warfare, see Wolff
Heintschel von Heinegg, The United Nations Convention on the Law of the Sea and Maritime
Security Operations, 48 GERMAN YEARBOOK OF INTERNATIONAL LAW 151 (2005).
104. Declaration Respecting Maritime Law, supra note 51, 1 4; Declaration Concerning the
Laws of Naval War art. 2, Feb. 26, 1909, 208 Consol. T.S. 338, reprinted in THE LAWS OF ARMED
CONFLICTS, supra note 51, at 1 1 13 (never in force); SAN REMO MANUAL, supra note 1, 1 95;
Commander's Handbook, supra note 43, 1 7.7.2.3.
105. SAN REMO MANUAL, supra note 1, 1fll 67(a), 98, 146(f). See also Declaration Concerning
the Laws of Naval War, supra note 105, art. 20; Heintschel von Heinegg, supra note 89, H 41-48.
106. The boarding of the Mavi Marmara and the other vessels in the flotilla occurred approxi-
mately 72 nautical miles at sea. Palmer Report, supra note 35, 1 1.
107. SAN REMO MANUAL, supra note 1, lffl67(a), 146(f); Commander's Handbook, supra note
43,17.10.
108. San REMO MANUAL, supra note 1, 1 102(b).
109. Id., 1 103; Heintschel von Heinegg, supra note 89, ffl| 49-52.
1 10. SAN REMO MANUAL, supra note 1, 1 103(b); Heintschel von Heinegg, supra note 90, IffI
50-51.
236
XI
Perfidy in Non-International Armed
Conflicts
Richard B. Jackson*
Introduction
Perfidy is a grave breach, or serious crime, under the law of war. It is generally
defined as "acts inviting the confidence of an adversary to lead him to believe
that he is entitled to, or is obliged to accord, protection under the rules of interna-
tional law applicable in armed conflict, with intent to betray that confidence." 1 Ex-
amples include using the white flag to lure an enemy into the open, or feigning
incapacitation by wounds or sickness; the most egregious violations include using
protected status, as a civilian or a medical professional, to treacherously kill or
wound an enemy.
In the current and recent conflicts in Iraq, Afghanistan, Somalia and Pakistan,
all of which are non-international armed conflicts of varying degrees of intensity,
actions that would be described as perfidy if they had occurred in an international
armed conflict are rampant. On January 19, 2011, for example, Iraqi insurgents
used an ambulance bomb to attack an Iraqi police station in Diyala province, kill-
ing five and wounding seventy-six individuals, the majority of whom were civil-
ians. 2 On the afternoon of July 5, 2011, a suicide bomber, disguised as a civilian,
detonated a truckload of explosives near a municipal building in Taji, Iraq; as
* Colonel, U.S. Army (Ret.); Special Assistant to the Judge Advocate General of the Army for Law
of War Matters. The views and opinions expressed are those of the author alone and not neces-
sarily those of the U.S. government or the U.S. Army.
Perfidy in Non-International Armed Conflicts
friends and neighbors, including young children, rushed to help the injured, a second
suicide bomber attacked from among the crowd. 3 In Afghanistan, on April 7, 201 1, a
suicide bomber used an ambulance to infiltrate a police checkpoint and then deto-
nated his bomb, killing six. 4 In Somalia, Al-Shabaab, an Al Qaeda-affiliated group
fighting the fledgling Somali government, has trained women to be suicide bomb-
ers, so they can launch their attacks while appearing to be innocent civilian females,
dressed in traditional Moslem garb. 5 And Pakistani insurgents have employed sim-
ilar asymmetric tactics. On May 13, 201 1, just days after the death of Bin Laden, the
Pakistani Taliban returned to the practice of launching suicide attacks from among
the civilian populace. 6
The question to be addressed is whether the war crime of perfidy exists in the
law of war pertaining to non-international armed conflicts. Or phrased in another
manner, is it appropriate to apply this term outside of international armed conflict,
where the rules are defined by treaty and customary international law? The Manual
on the Law of Non- International Armed Conflict suggests that at least some of the
conduct defined as perfidy when occurring during an international armed conflict
is also perfidious when occurring during non-international armed conflicts. 7 What
are its parameters and how many of the concepts from international armed conflict
are to be incorporated into the law of non-international armed conflicts?
An answer to these questions requires an examination of the Additional Proto-
col I (AP I) definition of perfidy in international armed conflict and its anteced-
ents, an analysis of the existing treaty law of non-international armed conflict
(Additional Protocol II (AP II)) 8 and an extrapolation of the principles established
in AP I for international armed conflicts into the law for non-international armed
conflicts. Although many of the specific provisions of AP I were not included in
AP II, Additional Protocol II includes the same general protections as AP I, which
suggests that the more specific provisions of AP I that give form and substance to
the general protections can be used to enforce compliance with those general
protections in non-international armed conflict, as a matter of customary interna-
tional law. As Bothe, Partsch and Solf suggest in their seminal work on the proto-
cols, "The concept of general protection ... is broad enough to cover protections
which flow as necessary inferences from other provisions of Protocol II." 9 The
basic principle of distinction and the protective principle of the law of armed con-
flict (also referred to as international humanitarian law) logically lead to the incor-
poration of the prohibition on perfidy, by inference, into the law applicable to
non-international armed conflict. In addition, the near-universal condemnation
of perfidious attacks and current State practice in those conflicts, the practice of
some international criminal tribunals, the practices adopted by States fighting
these conflicts and recent U.S. military commission cases provide substantial
238
Richard B. Jackson
support for application of a rule against perfidy in non-international armed con-
flicts in order to provide a sanction for the perfidious use of internationally recog-
nized emblems and protected statuses.
Protection of the civilian populace is essential in these complex conflicts. As the
U.S. Army and Marine Corps' Counterinsurgency Manual indicates, the protection
of civilians is the paramount requirement of the State in a non-international armed
conflict: "The cornerstone of any COIN [counterinsurgency] effort is establishing
security for the civilian populace." 10 The prosecution of perfidy, as a serious crime or
grave breach under the law of war, is required to protect the civilian population and
respect humanitarian efforts in this prevalent form of conflict, whether labeled
"transnational" or "intra-State non-international armed conflict."
The law that applies to the conduct of armed forces in a non-international
armed conflict is derived from treaty law and customary international law. How-
ever, the customary international law status of perfidy in non-international con-
flict is difficult to establish under the current U.S. view of customary international
law. 11 There is little or no evidence of perfidy violations being prosecuted under in-
ternational law in non-international armed conflicts, nor is there clear opinio juris
by States on this matter. Emerging customary international law must be inferred,
therefore, from the principles of the law of armed conflict supported by evidence
provided by jurists, official statements, statutes, the works of eminent writers and
evidence of State practice. 12
Treaty Provisions
General Principles
Treaty provisions adopting perfidy as a crime in non-international armed conflict
are nearly non-existent. 13 The law of armed conflict provisions from which a rule
against perfidy may be derived, however, are clearly enunciated in Additional Pro-
tocol II. The United States has signed AP II and three presidents have recom-
mended it be ratified by the Senate under the U.S. advice and consent
constitutional process. 14 At a minimum, U.S. forces are bound not to act contrary
to the purpose and intent of the treaty. 15 President Reagan, in transmitting the
treaty to the Senate for advice and consent, noted the importance of the humani-
tarian provisions of AP II, focusing on the provisions designed to protect those
who are hors de combat from intentional killing:
The United States has traditionally been in the forefront of efforts to codify and im-
prove the international rules of humanitarian law in armed conflict, with the objective
of giving the greatest possible protection to victims of such conflicts, consistent with
239
Perfidy in Non-International Armed Conflicts
legitimate military requirements. The agreement I am transmitting today is, with cer-
tain exceptions, 16 a positive step toward this goal. Its ratification by the United States
will assist us in continuing to exercise leadership in the international community
in these matters. . . . Protocol II to the 1949 Geneva Conventions is essentially an ex-
pansion of the fundamental humanitarian provisions contained in the 1949 Geneva
Conventions with respect to non-international armed conflicts, including humane
treatment and basic due process for detained persons, protection of the wounded, sick,
and medical units, and protection of noncombatants from attack and deliberate star-
vation. If these fundamental rules were observed, many of the worst human tragedies
of current internal armed conflicts could be avoided This Protocol makes clear that
any deliberate killing of a noncombatant in the course of a non-international armed
conflict is a violation of the laws of war and a crime against humanity, and is therefore
punishable as murder. 17
In addition, various U.S. officials have signaled the intent of the United States
government to comply with provisions of the treaty, including the protection of ci-
vilians and the prevention of intentional killing or serious bodily harm of those
that are protected under the humanitarian provisions of the law of war. 18 In his dis-
cussion of President Reagan's intent to ratify AP II, Judge Abraham Sofaer, the De-
partment of State Legal Advisor in 1987, expressed the desire of the U.S.
government to "guarantee that certain fundamental protections be observed," in-
cluding "protection from intentional attack, hostage taking, and acts of terrorism
[against] persons who take no active part in hostilities," "protection and appropriate
care for the sick and wounded, and medical units which assist them" and "protection
of the civilian population from military attack [and] acts of terror." 19
Additional Protocol II contains several provisions that articulate general princi-
ples of the law of armed conflict that are relevant to the crime of perfidy. Article 4
provides for humane treatment for those no longer taking a direct part in hostili-
ties; Article 7 protects the wounded and sick; and Articles 9 through 12 provide
protection to medical personnel, units, transports, and functions, via the interna-
tionally recognized red cross, red crescent and red lion emblems. 20 Article 12 con-
cludes that the emblems "shall not be used improperly." Article 13 provides that
civilians "shall not be the object of attack . . . unless and for such time as they take a
direct part in hostilities." Article 16 provides protection to cultural objects and
places of worship. Relief societies, marked with the aforementioned emblems, are
also allowed to "offer their services" to perform their traditional functions in rela-
tion to the victims of armed conflict under Article 18, so long as they provide ser-
vices of an "exclusively humanitarian and impartial nature." All of these provisions
provide for the general protections that are enforced through the prohibition of the
grave breach of perfidy.
240
Richard B. Jackson
Origins of the Prohibition of Perfidy
The origins of the prohibition of perfidy are found in the early law of war trea-
tises and treaties of the nineteenth and early twentieth centuries. In his 1810
Treatise on the Law of War, Van Bynkershoek wrote that he believed that fraud
and deceit were lawful and essential stratagems of war: "For my part, I think that
every species of deceit is lawful, perfidy only excepted. . . ." 21 He decried as an ex-
ample of perfidious conduct the offer of a Dutch sea captain of passage to the gov-
ernor of the Canary Islands, whom, when the governor accepted, the captain made
a prisoner for ransom. Van Bynkershoek likened this to an act of perfidy: "pre-
cisely the same as going to an enemy under the protected flag of truce, with an in-
tention to seize upon the first favourable opportunity to take away his life." 22
Francis Lieber, who gathered in his Lieber Code much of the law of nations from
the same Napoleonic period, noted:
Art. 16. Military necessity does not admit of cruelty — that is, the infliction of suffering
for the sake of suffering or revenge, nor of maiming or wounding except in fight. ... It
admits of deception, but disclaims acts of perfidy; and, in general, military necessity
does not include any act of hostility which makes the return to peace unnecessarily
difficult.
Art. 65. The use of the enemy's national standard, flag, or other emblem of nationality,
for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose
all claim to the protection of the laws of war.
Art. 101. While deception in war is admitted as a just and necessary means of hostility,
and is consistent with honorable warfare, the common law of war allows even capital
punishment for clandestine or treacherous attempts to injure an enemy, because they
are so dangerous, and it is so difficult to guard against them.
Art. 1 17. It is justly considered an act of bad faith, of infamy or fiendishness, to deceive
the enemy by flags of protection [including flags of truce and hospital designation]. 23
Finally, Lieber provided that these "rules of war" are appropriate for a civil war,
without reference to the legitimacy of the "rebels," as "humanity induces the
adoption of rules of regular war toward the rebels, whether the adoption is partial or
entire, [while] it does in no way whatever imply a partial or complete acknowl-
edgement of their government." 24 In its earliest form of codification, the law of war
provided for the grave breach of perfidy, even in non-international armed conflict.
The 1907 Hague Regulations codified, in a broadly adopted treaty, the concept
of perfidy. 25 Article 23(b) provided that it was "especially forbidden" to "kill or
241
Perfidy in Non-International Armed Conflicts
wound treacherously individuals belonging to the hostile nation or army" and Ar-
ticle 23(f) prohibited "improper use of a flag of truce, of the national flag or of the
military insignia and uniform of the enemy, as well as the distinctive badges of the
Geneva Convention." 26 Although the Hague Regulations applied between States
parties, the famous "Martens clause" in Article 2 arguably extends many of these
rules to other forms of warfare in stating that "the inhabitants and the belligerents
remain under the protections of and the rule of the principles of the law of nations,
as they result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience."
In Spaight's 1911 seminal War Rights on Land, he noted the application of the
rule against perfidy to a broad range of conduct. Quoting Hall, Oppenheim and
Bluntschli, Spaight found that use of an enemy uniform, insignia or flag is permit-
ted "up to the commencement of actual fighting." 27 Spaight also provided numer-
ous examples of strict and less strict interpretations of this provision from the U.S.
Civil War, the Franco-Prussian War, the Crimean War and the Boer War. 28 As a
clear case of "treacherous attempts to kill or wound," he cited the use of civilian
clothes by belligerent troops of the Japanese in the Russo-Japanese War. 29 And, as
an example of the perfidious use of a protected emblem, Spaight cited both the
"treacherous overt act — if, for instance, by making a sudden attempt [under a
white flag] , he kills the enemy commander" 30 — and the "treacherous simulation of
sickness or wounds" in the Russo-Japanese War. 31 These examples, applied in in-
ternational (Franco-Prussian and Crimean Wars) and non-international (Boer
and U.S. Civil Wars) armed conflicts, validate the strength, breadth and applica-
tion of the prohibition on perfidious conduct across the spectrum of conflict.
Application of the Rules against Perfidy
Skorzeny Case
As evidenced by documents and treatises antecedent to the Second World War,
perfidy was a crime that included treacherous use of the enemy uniform. A signifi-
cant case that arose during the prosecutions before the International Military Tri-
bunals illuminated the difference between the ruse of infiltration using the enemy
uniform, and the "improper use" of the enemy uniform to kill or wound in viola-
tion of Article 23(f) of the Hague Regulations. Colonel Otto Skorzeny, the cele-
brated German commando who had rescued Mussolini from Italian partisans, was
prosecuted, along with nine of his soldiers, for the "improper use of American uni-
forms by entering into combat disguised therewith and treacherously firing upon
and killing members of the armed forces of the US." 32 The trial produced testi-
mony that Skorzeny's commandos, who were charged with seizing bridges and
242
Richard B. Jackson
road intersections in advance of the Battle of the Bulge, were instructed to use
American uniforms to infiltrate the lines, but to avoid fighting in enemy uniforms.
At trial, no evidence of U.S. soldiers being killed or wounded by Germans fighting
in American uniforms was produced, so all the accused were acquitted. 33 Since the
published report contains only the findings of the court, without explanation, the
"Notes on the Case," prepared by the War Crimes Commission, provide the only
rationale for the decision. They explain the decision by noting the lack of treacher-
ous killing or wounding, as well as citing the U.S. Rules of Land Warfare of October
1940, which permitted the use of enemy uniforms and insignia as a ruse, but pro-
hibited their use during combat, requiring that they be discarded before opening
fire upon the enemy. 34 While the prohibition on use of enemy uniforms in combat
has survived, even into non-international armed conflict, 35 the modern grave
breach of perfidy has not included the misuse of enemy uniforms. 36
Perfidy during the Cold War: Special Operations Forces
In a 2003 article, W. Hays Parks described numerous examples of the use of civilian
clothing in special operations missions that ranged from clandestine direct action
missions to special reconnaissance missions deep within enemy-held territory. 37
Several reported cases of soldiers wearing civilian clothes while on a mission to at-
tack civilian objects arose from the conflict between Indonesia and Malaysia in the
1960s. A Malaysian case, Krofan and Another ; arising from the international armed
conflict between Malaysia and Indonesia over the status of Singapore (then a part
of Malaysia) and other nearby territories, illustrates the use of civilian clothes as a
violation of the law of war. 38 While the case turns on the issue of the lack of status of
the Indonesian soldiers as prisoners of war due to their mission of sabotage, the
Singapore court decried the tactic of wearing civilian clothes because of its ten-
dency to endanger civilians: "Both [spies and saboteurs] seek to harm the enemy by
clandestine means by carrying out their hostile operations in circumstances which
render it difficult to distinguish them from civilians." 39
Parks also cites several examples of Soviet Spetsnaz (Special Operations) Forces
and Israeli commandos using civilian clothes to infiltrate and capture or kill enemy
forces. 40 None of these cases resulted in charges of perfidy, however, as they rested
on claims of "unlawful belligerency" and the crimes of espionage or sabotage un-
der domestic statutes, rather than law of war violations. Parks cautioned military
forces to avoid perfidy, which he said was synonymous with "treacherous wound-
ing" under the Hague Regulations, 41 and noted that the principle of distinction is
"at the heart of the balance" between lawful military operations and perfidy. Fi-
nally, he concluded that the drafters of the 1977 Protocols decided to criminalize
243
Perfidy in Non-International Armed Conflicts
use of civilian clothing "in the most egregious circumstances, such as terrorism and
treacherous use of civilian clothing." 42
A Modern Definition of Perfidy: Additional Protocol I
While it may be difficult to trace the precise application of the "treacherous killing
or wounding" provisions of Article 23 from the Hague Regulations to the present,
Additional Protocol I, which unified the Hague and Geneva traditions of the law of
war, specifically addresses the definition of perfidy in international armed conflict:
It is prohibited to kill, injure, or capture an adversary by resort to perfidy. Acts inviting
the confidence of an adversary to lead him to believe he is entitled to, or is obliged to ac-
cord, protection under the rules of international law applicable in armed conflict, with
intent to betray that confidence, shall constitute perfidy. The following are examples of
perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the
United Nations or of neutral or other States not Parties to the conflict. 43
Article 37 goes on to distinguish "ruses of war," or acts "intended to mislead an
adversary . . . which are not perfidious because they do not invite the confidence of
an adversary with respect to protection under the law." A distinction between these
concepts is essential to understanding perfidy. As Oppenheim notes, "whenever a
belligerent has expressly or tacitly engaged, and is therefore bound by a moral obli-
gation to speak truth to an enemy, it is perfidy to betray his confidence, because it
constitutes a breach of good faith." 44
While the prohibitions on perfidy contained in AP I are broad, the grave
breaches that are prohibited are narrowly defined. First, grave breaches are limited
to those violations of the law of war that are "committed willfully" (incorporating a
mens rea element) and cause "death or serious injury to body or health." 45 And the
specific provisions of perfidy that constitute grave breaches only include misuse of
internationally protected emblems, outlined in Articles 37 and 38, that result in
death or serious bodily harm. 46 So, while perfidy may be more broadly construed to
include a number of "breaches of faith" on the international armed conflict battle-
field, the violations of the law of war that are designated as "grave breaches," with
the requirement to "prosecute or extradite" perpetrators, 47 are few.
244
Richard B. Jackson
Perfidy in Non-International Armed Conflict
So what elements of perfidy, as described in Protocol I, can be extrapolated to non-
international armed conflict? The Manual on the Law of Non- International Armed
Conflict (NIAC Manual) describes perfidy in non-international armed conflict
rather broadly. It prohibits "[displaying the white flag falsely, or pretending to
surrender, be wounded, or otherwise have a protected status . . . if the intent in do-
ing so is to kill or wound an adversary." 48 How much of this definition fits the stan-
dard established by Bothe, Partsch and Solf: "The concept of general protection . . .
is broad enough to cover protections which flow as necessary inferences from other
provisions of Protocol H"? 49 In other words, do the general principles adopted in
AP II support a customary international law application of the specific provisions
that prohibit that same conduct in international armed conflict? Are the provisions
of this proposed rule consistent with the protective principle and the principle of
distinction? And how many of these rules have been adopted in practice?
The Principles of Additional Protocol II and Their Connection to Perfidy
The principle of distinction is clearly enunciated in Protocol II, the treaty govern-
ing non-international armed conflicts that cross certain thresholds, and customary
international law. Article 13 provides that civilians are to be protected "against the
dangers arising from military operations . . . unless and for such time as they take a
direct part in hostilities." 50 The principle of distinction (also characterized as "dis-
crimination") is also enshrined in treaty law applicable to non-international armed
conflict in protocols of the Certain Conventional Weapons Convention. 51 For ex-
ample, Article 3(8) of the Amended Mines Protocol II, which by its provisions ap-
plies to Common Article 3 conflicts, requires distinction between military
objectives and civilians or civilian objects. 52 Finally, distinction is clearly recog-
nized in customary international law as applying in non-international armed
conflicts. 53 For example, the International Criminal Tribunal for the former Yugo-
slavia (ICTY) noted in the Kupreskic case, "The protection of civilians in armed
conflict, whether international or internal [non-international], is the bedrock of
modern humanitarian law." 54
Article 13 of AP II sets forth a general "protective principle" 55 to protect the
civilian population and individual civilians from the dangers of military opera-
tions. As the International Committee of the Red Cross's Commentary notes, the
protection extended to civilians in Article 13 reflects the more detailed protections
of Article 51 of Additional Protocol I 56 — in particular the principle of distinction in
Article 51 (4), which defines "indiscriminate attacks" as those attacks which "are of
a nature to strike military objectives (including combatants) and civilians or
245
Perfidy in Non-International Armed Conflicts
civilian objects without distinction." 57 The Commentary goes on to explain that
States are required to formulate rules that give form and substance to the principle
of distinction:
This radical simplification does not reduce the degree of protection which was initially
envisaged, for despite its brevity, Article 13 reflects the most fundamental rules. How
to implement them is the responsibility of the parties, and this means that the safety
measures they are obliged to take under the rule on protection will have to be devel-
oped so as to best suit each situation, the infrastructure available and the means at
their disposal. 58
Other provisions of Additional Protocol II emphasize the principles that are re-
inforced by the prohibition on perfidy, thereby strengthening the argument that
forbidding perfidy is an essential tool for States as "measures they are obliged to
take" to emphasize these protective principles. The "fundamental guarantees" of
Article 4 prohibit murder and other violence to life and health, as well as the giving
of "order[s] that there shall be no survivors," 59 a ban reflecting the "no quarter"
provision of the Hague Regulations. 60 These prohibitions reinforce the require-
ment to protect the lives of those that are hors de combat, which is so fundamental
to the basic guarantees in Common Article 3. 61 Additional Protocol II emphasizes
the importance of extending that protection principle to abolish the feigning of
"protected person status" to gain an advantage on an enemy; failure to respect
those prohibitions on perfidy will encourage enemy soldiers to ignore the protective
principle and murder soldiers and civilians, alike, who are hors de combat, or no
longer taking an active or direct part in hostilities.
Additional Protocol II also extends the protections outlined in AP I to distinc-
tive emblems and medical personnel and units, key targets for protection that are
shielded by enforcement of perfidy provisions. Article 12 of AP II clearly protects
distinctive emblems, which should be "respected in all circumstances" and never
"used improperly." Both of these provisions require the rule against perfidy as an
enforcement mechanism to be adopted by States. Finally, medical personnel are to
be "respected and protected" under Article 9, and medical units and transports
should be "respected and protected at all times and shall not be the object of at-
tack," under Article 11 of AP II. Without the rules against perfidy to guarantee
their status and punish offenders, States lack the enforcement mechanism neces-
sary to guarantee these key protective principles.
Capture as Perfidy?
Perfidy in the form of misuse of a protected emblem to capture an enemy in non-
international armed conflict has not become customary international law. As the
246
Richard B. Jackson
commentary in the NIAC Manual points out, "The reference to capture does not
appear in the original 1899 and 1907 Hague Regulations, Article 23(b), prohibition
and is not binding on non-contracting Parties to Additional Protocol I." 62 In addi-
tion, as noted above, the grave breach provision of Article 85 of AP I applies only to
acts causing "death or serious injury." The International Committee of the Red
Cross's Customary International Law Study notes that "killing or wounding an
adversary by resort to perfidy" is a serious crime, even in non-international armed
conflict. 63 In the Dusko Tadic case, the ICTY noted that serious crimes, even in
non-international armed conflict, not only must "constitute a breach of a rule pro-
tecting important values," which the rule against perfidy certainly protects, but
also "must involve grave consequences for the victim." 64 Finally, Article 8.2(e) (ix)
of the Statute of the International Criminal Court (ICC) only applies perfidy
to non-international armed conflict in the case of killing and wounding of
an adversary. 65
State practice supports the view that misuse of protected emblems that is not the
proximate cause of death or serious injury is proscribed, even in non-international
armed conflict, but it is not considered to be as serious as the crime of perfidy. An
example can be found in the dramatic rescue operation conducted by Colombian
military forces to free Colombian and U.S. hostages from the Revolutionary
Armed Forces of Colombia (FARC). 66 The Colombia military infiltrated the radio
net used by the guerrillas and fooled the FARC into believing that the Venezuelan
government had provided "humanitarian airlift" to remove the hostages and sev-
eral guerrillas who were guarding them to a more secure location. Despite the over-
sight of senior officials in the Colombian government, who instructed the
members of the rescue team to avoid the misuse of protected emblems (and had
them removed from the aircraft), one of the team members wore a shirt with the
red cross emblem clearly visible. Though the Colombian military explained that
the misuse of the emblem was unintended, it was roundly criticized in the press for
this mistake. While the misuse of the emblem, if intentional, may have violated the
prohibition on misuse in Article 12, AP II, the elements of the grave breach of per-
fidy require more than capture; they require "kill[ing] or wound [ing] treacher-
ously," in the words of the Hague Rules. In the end, cries of "perfidy" were muted,
presumably because there is no consensus in the international community about
the validity of characterizing the conduct as perfidious when the misuse of the em-
blem is used to capture, rather than kill. 67
Law Enforcement Tactics
States involved in non-international armed conflicts, particularly those character-
ized as "counterinsurgencies" by the government forces, often adopt law
247
Perfidy in Non-International Armed Conflicts
enforcement tactics, which can blur the distinction between government forces
and the civilian populace. Members of civilian law enforcement agencies rou-
tinely wear civilian clothing and agents in some law enforcement agencies never
wear uniforms. 68 A close working relationship between the military and civilian
law enforcement can be a critical component in counterinsurgency operations. 69
This may include clandestine operations conducted in civilian clothing by law en-
forcement and military authorities, particularly with respect to surveillance and
other intelligence collection operations. An informant or ordinary civilian may be
reluctant to be seen speaking with uniformed law enforcement or military person-
nel, for example. There is no prohibition on "spying" by government forces in
non-international armed conflict, as espionage is generally recognized as a domes-
tic law violation, not a violation of international law, 70 and representatives of the
host nation or supporting foreign forces cannot commit "espionage" against orga-
nized armed groups in an internal armed conflict. As Parks notes in his 2003 arti-
cle, "A 'double standard' exists within the law of war for regular forces of a
recognized government vis-a-vis unauthorized combatant acts by private individ-
uals or non-State actors." In non-international armed conflict, therefore, govern-
ment forces (including both law enforcement agents and military personnel acting
under the color of the law of the host nation) can often be expected to don civilian
clothes when gathering information or providing support to civilian authorities.
While this would not constitute perfidy, there is a fine line between representing
the government in the performance of quasi-law enforcement functions and
"feigning civilian status," thereby putting civilians at risk, in an attempt to gain an
advantage in attacking insurgent forces.
Feigning Civilian Status
The critical focus of perfidy, in the area of feigning civilian status, is on the princi-
ple of "distinction," which protects civilians from combatants (including those
classified as "unlawful combatants" and "unprivileged belligerents") on the inter-
national and non-international battlefield. Feigning civilian status to gain advan-
tage over an enemy in an attack is an act of perfidy that goes to the very heart of the
protective principle and, as such, its designation as a crime in non-international
armed conflicts. In Tadic, the very first ICTY case, the Tribunal recognized the im-
portance of perfidy as a crime under customary international law:
State practice shows that general principles of customary international law have
evolved with regard to internal armed conflict also in areas relating to methods of
warfare. In addition to what has been stated above, with regard to the ban on attacks on
civilians in the theatre of hostilities, mention can be made of the prohibition of perfidy.
248
Richard B. Jackson
Thus, for instance, in a case brought before Nigerian courts, the Supreme Court of Ni-
geria held that rebels must not feign civilian status while engaging in military opera-
tions (citation omitted). 71
It is important to note that Additional Protocol I's deviation from this principle
in Articles 1(4) and 44(3), which collectively expand the notion of international
armed conflict to the traditional non-international armed conflicts of "national
liberation" and allow members of organized armed groups to claim "combatant"
status merely by carrying their arms openly, was critical to the U.S. rejection of the
Protocol. In expressing the Reagan administration's concern regarding Protocol I,
Judge Sofaer, the then Department of State Legal Adviser, decried the failure of Ar-
ticles 1(4) and 44(3) to protect civilians, stating that these provisions, when taken
together, allow terrorists in wars of "national liberation" to avoid being charged
with perfidy when hiding among the civilian population until the moment of at-
tack, even though thereby putting the civilian populace and the principle of dis-
tinction at risk. 72 This deviation from the general prohibition of feigning civilian
status to gain a military advantage only applies to international armed conflicts of
"national liberation"; organized armed groups in non-international armed con-
flict are not permitted to launch attacks from the civilian populace.
Jawad and al-Nashiri Cases
Two U.S. military commission cases illustrate the current U.S. practice with
respect to perfidy and the offense of launching an attack while feigning civilian status.
Mohammed Jawad was a young Afghan who was alleged to have thrown a hand
grenade into a vehicle in which two American service members and their Afghan
interpreter were riding. He was charged with three specifications of attempted
murder in violation of the law of war and three specifications of intentionally in-
flicting serious bodily injury. The government alleged that Jawad was concealing
the grenade while dressed in civilian clothes and that he launched his attack from a
crowd of civilians in the streets of Kabul. In support of the charges, the govern-
ment argued that by his conduct, "the accused unlawfully engaged in combat by
fighting outside of responsible command, by fighting without wearing a distinc-
tive emblem, by failing to carry his arms openly, and by flaunting the laws and cus-
toms of war by feigning to be a non-combatant." 73
The second case involves Abd al-Rahim Hussayn Muhammad al-Nashiri, al-
leged to be the bomber of USS Cole and the attempted bomber of USS The Sulli-
vanSy who has been charged with perfidy and attempted murder as follows:
249
Perfidy in Non-International Armed Conflicts
Charge I: Violation of 10 U.S.C. § 950t(17), Using Treachery or Perfidy
Specification: In that Abd al Rahim Hussayn Muhammad al NASHIRI . . . , an alien
unprivileged enemy belligerent subject to trial by military commission, did, in or
around Aden, Yemen, on or about 12 October 2000, in the context of and associated
with hostilities, invite the confidence and belief of one or more persons onboard USS
COLE (DDG 67), including but not limited to then FN Raymond Mooney, USN, that
two men dressed in civilian clothing, waving at the crewmembers onboard USS COLE
(DDG 67), and operating a civilian boat, were entitled to protection under the law of
war, and intending to betray that confidence and belief, did thereafter make use of that
confidence and belief to detonate explosives hidden on said civilian boat alongside USS
COLE (DDG 67), killing 17 Sailors of the United States Navy . . . and injuring one or
more persons, all crewmembers onboard USS COLE (DDG 67). . . .
Charge III: Violation of 10 U.S.C. § 950t(28), Attempted Murder in Violation of the
Law of War
Specification 1: In that Abd al Rahim Hussayn Muhammad al NASHIRI . . . did, . . .
with the specific intent to commit Murder in Violation of the Law of War, attempt to
intentionally and unlawfully kill one or more persons onboard USS THE SULLIVANS
(DDG 68), in violation of the law of war, to wit: by committing an act of perfidy . . . and
to effect the commission of Murder in Violation of the Law of War, the two suicide
bombers dressed in civilian clothes. . . . 74
Both these cases illustrate the view of the United States that the wearing of civil-
ian clothes to perfidiously gain an advantage over an opponent when launching an
attack is a crime when it occurs during an international armed conflict. As of the
date of this writing, only in the Jawad case has there been a ruling regarding the of-
fense of perfidy. In that case, Judge Henley ruled that the government could at-
tempt to prove at trial that the attempted murder of the U.S. service members was
perfidious conduct that violated the law of war. 75
Government Forces in Non-International Armed Conflict
Foreign forces supporting the sovereign government and government forces in a
non-international armed conflict have a hybrid mission, partly based on armed
conflict and partly based on law enforcement concerns. The law of armed conflict
is invoked because the normal domestic (law enforcement) authorities are over-
whelmed by organized armed groups, who threaten the very existence of the State.
In recommending some criteria for application of Common Article 3, Pictet noted
that a key element in distinguishing "a genuine armed conflict from a mere act of
banditry or an unorganized or short-lived insurrection" was whether the legal gov-
ernment "is obliged to have recourse to regular military forces against insurgents
organized as military and in possession of a part of the national territory." 76 But the
250
Richard B. Jackson
national security risks entailed in a non-international armed conflict do not re-
quire abandonment of societal norms intended to provide minimal protections to
the populace. As Pictet notes in commenting on the minimum standards of Com-
mon Article 3:
It merely demands respect for certain rules, which were already recognized as essential
in all civilized countries, and enacted in the municipal law of the States in question,
long before the Convention was signed. What Government would dare to claim before
the world, in a case of civil disturbances which could justly be described as mere acts of
banditry, that, Article 3 not being applicable, it was entitled to leave the wounded
uncared for, to inflict torture and mutilations and to take hostages? However useful,
therefore, the various conditions [of Common Article 3] may be, they are not
indispensable, since no Government can object to respecting, in its dealings with inter-
nal enemies, whatever the nature of the conflict between it and them, a few essential
rules which it in fact respects daily, under its own laws, even when dealing with com-
mon criminals. 77
As the U.S. Army and Marine Corps' Counterinsurgency Manual indicates,
COIN forces are constantly moving through the spectrum of conflict, at one mo-
ment involved in a pitched battle with organized armed groups and in the next (or
in the next village) supporting host nation law enforcement personnel in conduct-
ing civil security operations, under the rubric of "stability operations." 78 But the
raison d'etre of COIN is the same for both aspects of the counterinsurgency fight,
which is "efforts to secure the safety and support of the local populace." 79 Whether
it is law enforcement efforts to "protect and serve" (as many local police forces
demonstrate by the motto displayed on their police cars) or military forces in-
tent on securing the "safety and support of the local populace" 80 by applying the
law of armed conflict through the protective principle discussed above, both have
the same objective. For example, most military forces operating in a COIN envi-
ronment apply self-defense rules of engagement, which in application differ little
from law enforcement rules for the use of force. 81 Law enforcement agencies
within the United States invariably conduct their "takedowns" of criminals in uni-
forms emblazoned with the logos of their agencies (the Federal Bureau of Investi-
gation or Drug Enforcement Administration, for example). While such tactics
protect the agents by preventing confusing law enforcement agents with criminal
gangs and by asserting the lawful power of the government to conduct arrest,
search or seizure, they also protect innocent civilian bystanders by isolating the ac-
tivity from the civilian populace. The tactical distinctions between COIN opera-
tions in non-international armed conflicts conducted for law enforcement
251
Perfidy in Non-International Armed Conflicts
purposes and those operations conducted with a military purpose fade away when
the commander's intent to avoid civilian casualties is factored into the equation. 82
U.S. Experience in Afghanistan
Twice in the last year, U.S. forces in Afghanistan have applied the protective
principle and this approach to perfidy to actions by U.S. forces in the current
non-international armed conflict in Afghanistan. The first instance involved the
wearing of civilian clothes by members of the U.S. armed forces working in sup-
port of Afghan civil authorities, such as in the "Afghan Hands" program, where
military members work outside of NATO facilities within the Afghan community
performing duties that are not directly combat related. A U.S. Forces-Afghanistan
(USFOR-A) position paper analyzed the impact of military personnel wearing
civilian clothes and concluded, "The LOW [law of war] does not require U.S. mil-
itary personnel to wear uniforms if they are not performing a combat-related op-
eration or attempting to deceive the enemy for a military advantage (i.e.,
perfidy)." 83 The rationale for this approach, at least in part, was to "clearly and
identifiably distinguish!] combatants from the civilian population," to avoid ci-
vilian exposure to combat operations and the "corresponding risk of harm." 84
The paper noted, "Winning the hearts and minds of the civilian population is a
must in a counterinsurgency (COIN) fight and thus protection of the civilian
population must be a priority." 85 The paper quoted from a 2003 paper by Major
William Ferrell III: "[0]nce combatants begin distinguishing themselves as civil-
ians, or failing to distinguish themselves from civilians to gain an advantage over
the enemy, civilians will become suspect and ultimately targets." 86 The USFOR-A
paper concludes that the wearing of civilian clothes in offensive operations is a
potential law of war violation (perfidy) and counsels against such practice, as
"this violates the basic principle of distinction." 87 In a related issue, the USFOR-A
Staff Judge Advocate issued an "Information Paper" on May 12, 2011 on the car-
rying of weapons. The paper opens with the classic military "bottom line up
front":
The rules governing how weapons are carried find their origin in the law of war, specifi-
cally the tenet of distinction. The standard for US military members, while in Afghani-
stan, is to carry their weapons openly. Service members in the CENTCOM Area of
Operations (AOR) must wear their weapons openly at all times. Service members may
not conceal their weapons with a perfidious intent. 88
252
Richard B. Jackson
The paper goes on to conclude, "A military member may not conceal his weapon
with an intent to deceive people into believing he does not have a weapon or to
make them believe he is a noncombatant [which the paper calls a "perfidious in-
tent"]." 89 Current State practice, at least by U.S. forces in Afghanistan, reinforces
the existence of the concept of perfidy in non-international armed conflict.
Conclusion
A colleague remarked after the Naval War College presentation on perfidy in non-
international armed conflict that he "now understood [my] worldview — you be-
lieve that all the rules of international armed conflict should be followed, as a mat-
ter of law, in non-international armed conflict." I respectfully disagree with that
conclusion. 90 But there is much to be said for an approach that applies general pro-
tective principles derived from Additional Protocol II as Bothe, Partsch and Solf
suggest in their comparison of Article 51 of AP I and Article 13 of AP II:
Article 13 of Protocol II restates the provisions of the first three paragraphs of Art. 51 of
Protocol I. It declares that civilians shall enjoy general protection against the dangers
arising from military operations. . . . The Article does not, however, explicitly provide
protection against indiscriminate or disproportionate attacks, nor does it prohibit ex-
plicitly the use of civilians to shield military operations. Moreover, it omits any direct
reference to a prohibition against direct attacks or disproportionate collateral damage
with respect to civilian objects. . . . Some of the specific protection thus omitted may,
however, be inferred from the general protection provided in para. 1, but the construc-
tion of balanced protection for civilians from the abbreviated Art. 13 places a heavy
burden on the term "general protection." 91
They also suggest that the crime of perfidy can be extrapolated from the basic prin-
ciples recognized in Common Article 3 and Additional Protocol I, which provide
protection from harm for those that are hors de combat (fighters who have been
wounded or surrendered on the battlefield), civilians who are not directly partici-
pating in hostilities, those who are providing basic humanitarian services on the
battlefield (protected by the red cross, red crescent and red crystal emblems) and
those who have displayed the white flag of surrender.
As evidenced by treatises, the Customary International Humanitarian Law
study, the findings of international tribunals prosecuting war criminals and State
practice, customary international law provides that perfidy is a violation of the
law of war in non-international armed conflict. In her excellent work, War Crimes
in Internal Armed Conflicts^ Eve La Haye notes that the amount of State practice and
opinio juris on the protective principle of distinction "fulfils the criteria of an
253
Perfidy in Non-International Armed Conflicts
extensive and virtually uniform practice, coupled with the belief that this princi-
ple is legally obligatory." 92 A.P.V. Rogers, in Law on the Battlefield, concludes that
perfidy consists of conduct that results in killing or wounding an adversary
through "treachery," including "killing by feigning civilian status" or hors de com-
bat status, or "improper use of the flag of truce, the red-cross or red-crescent em-
blems, or the flag or military insignia or uniform of the enemy." 93 The ICC
Statute makes "[k]illing or wounding treacherously a combatant adversary" an
"other serious violation!] of the laws and customs applicable in armed conflicts not
of an international character." 94 And the jurisprudence, cited above, both domes-
tic and international, supports this view of perfidy as a crime in non-international
armed conflict. 95
Finally, State practice has developed not only to prohibit feigning of civilian sta-
tus in non-international armed conflict, as evidenced by the Jawad and al-Nashiri
cases, but also to affirmatively prevent violations of this provision by military
forces supporting government efforts in non-international armed conflict.
Notes
1. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts art. 37(1), June 8, 1977, 1125U.N.T.S. 3
[hereinafter AP I].
2. John Leland, Bomber Uses Ambulance to Hit Iraqi Police Headquarters, NEW YORK
TIMES, Jan. 20, 201 1, at A 10.
3. Yasir Ghazi & Tim Arango, Explosion in Iraq Draws Victims for a Second Blast, NEW YORK
TIMES, July 6, 2011, at A10.
4. Six Die as Afghan Ambulance Bomb Targets Police, HINDUSTAN TIMES (Apr. 7, 201 1),
http://www.hindustantimes.com/world-news/afghanistan/Six-die-as-Afghan-ambulance-bomb
-targets-police/Article 1 -682425. aspx.
5. See, e.g., Abdi Guled & Ibrahim Muhamed, Suicide Bomber Kills 3 Somali Ministers,
REUTERS, Dec. 3, 2009, http://www.reuters.com/article/2009/12/03/us-somalia-conflict
-idUSTRE5B2 1 7Y2009 1 203.
6. See, e.g., Declan Walsh, Pakistani Suicide Bombers Kill 80 as Taliban Seek Revenge for
Bin Laden, GUARDIAN (May 13, 2011), http://www.guardian.co.uk/world/2011/may/13/suicide
-bombing-revenge-osama. See also Anwar Shakir, UN Halts Aid Distribution After Female Sui-
cide Bomber Kills 46 in Pakistan, BLOOMBERG (Dec. 27, 2010), http://www.bloomberg.com/news/
20 1 0- 1 2-25/pakistan-blast-kills-38-people-edhi-ambulance-service-spokesman-reports.html.
7. Michael N. Schmitt, Charles H.B. Garraway & Yoram Dinstein, The Manual
on the Law of Non-International Armed Conflict with Commentary i 2.3.6 (2006)
[hereinafter NIAC MANUAL].
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609
[hereinafter AP II].
9. MICHAEL BOTHE, KARL J. PARTSCH & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF
ARMED CONFLICTS 677 (1982).
254
Richard B. Jackson
10. Headquarters, Department of the Army & Headquarters, Marine Corps Combat Devel-
opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), available at http://
www.scribd.com/doc/9137276/US-Army-Field-Manual-FM-324-Counterinsurgency [herein-
after Counterinsurgency Manual].
11. See John B. Bellinger & William J. Haynes, A U.S. Government Response to the Interna-
tional Committee of the Red Cross's Customary International Humanitarian Law Study, 89
INTERNATIONAL REVIEW OF THE RED CROSS 443 (2007). In criticizing the Customary Interna-
tional Humanitarian Law study's methodology, Bellinger and Haynes emphasized that a general
and consistent practice of States, combined with evidence of compliance by States out of a sense
of legal obligation, or opinio juris, was required for the development of customary international
law. See also North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3,1J43 (Feb.
20) ("State practice, including that of States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of the provision invoked; and should
moreover have occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved.").
12. Statute of the International Court of Justice art. 38(l)(d), 33 U.N.T.S. 993.
13. See infra text accompanying note 65 for a discussion of the one treaty provision address-
ing perfidy in non-international armed conflict.
14. See Message from the President of the United States Transmitting the Protocol II
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts, Concluded at Geneva on June 10, 1977, S.
Treaty Doc. No. 100-2 (1987) (Jan. 29, 1987) [hereinafter Message from the President]. See also
Message from the President of the United States Transmitting the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict and, for Accession, the Hague
Protocol, S. Treaty Doc. No. 106-1 (Jan. 6, 1999); White House, Fact Sheet: New Actions on
Guantanamo and Detainee Policy 3 (Mar. 7, 2011), http://www.whitehouse.gov/the-press-office/
2011/03/07/new-actions-guantanamo-bay-and-detainee-policy (reaffirming President Obama's
commitment to the ratification of AP II).
15. Vienna Convention on the Law of Treaties art. 18, May 23, 1969, 1 155 U.N.T.S. 331.
16. This caveat refers to the reservations or understandings proposed by President Reagan,
the principal one being an extension of AP II to all Common Article 3 conflicts, thus expanding
the scope of the Protocol. Message from the President, supra note 14, at viii.
17. Id. atiii.
18. Michael J. Matheson, The United States Position on the Relation of Customary Interna-
tional Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AMERICAN
UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 425 (1987); Abraham Sofaer,
The Position of the United States on Current Law of War Agreements, supra, at 460.
19. Sofaer, supra note 18, at 461.
20. Additional Protocol III adopts the red crystal emblem as the fourth internationally rec-
ognized emblem. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relat-
ing to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, 2404 U.N.T.S. 261
(2006).
21. CORNELIUS VAN BYNKERSHOEK, TREATISE ON THE LAW OF WAR 3(1810).
22. Id. at 15.
23. U.S. Department of War, Instructions for the Government of Armies of the United
States in the Field, General Orders No. 100, Apr. 24, 1863, reprinted in THE LAWS OF ARMED
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3
255
Perfidy in Non-International Armed Conflicts
(Dietrich Schindler & Jiri Toman eds., 4th ed. 2004), available at http://www.icrc.org/ihl.nsf/
FULL/1 10?OpenDocument.
24. Id., art. 152.
25. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention
No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2227 [hereinaf-
ter Hague Regulations].
26. Id.
27. J.M. Spaight, War Rights on Land 105 (1911).
28. Id. at 104-9.
29. Id. at 110.
30. Id. at 220.
31. Id. at 434.
32. Trial of Otto Skorzeny and Others, 9 Law Reports of Trials of War Criminals 90 (1949).
33. Mat 91.
34. Id. at 93.
35. See NIAC MANUAL, supra note 7, at 42. However, at the Naval War College conference
from which the articles in this volume derive, the authors of the Manual, when questioned, ex-
pressed uncertainty concerning the validity of this provision.
36. Compare Articles 37 and 39 of AP I, which prohibit perfidy and use of the "uniforms of
adverse parties," respectively, without making the latter a grave breach, with Article 85. The
author is using the term "grave breach" to distinguish those offenses that must be criminally pro-
hibited and prosecuted under the law of war from other violations, which the parties are obli-
gated to take measures to suppress. See, e.g., Convention Relative to the Protection of Civilian
Persons in Time of War art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC
IV]; see also War Crimes Act, 18 U.S.C. § 2441 (1996) (making the enumerated grave breaches
federal crimes and defining "grave breaches" of Common Article 3). Other "measures necessary"
may include making such conduct criminal, administrative action, training or other corrective
action, as appropriate.
37. W. Hays Parks, Special Forces' Wear of Non-standard Uniforms, 4 CHICAGO JOURNAL OF
INTERNATIONAL LAW 493 (2003).
38. Krofan v. Public Prosecutor, 1 MALAYAN LAW JOURNAL 133 (1967), available at http://www
.icrc.org/ihl-nat.nsf/46707c4 1 9d6bdfa24 1 25673e00508 145/0711 dbb7 1 1 7ft) 1 a4c 1 256ae8003f8cde
!OpenDocument.
39. Id. See also Mohamed Ali v. Public Prosecutor, [1969] 1 A.C. 430, available at http://www
.icrc.org/ihl-nat.nsf/39a82e2ca42b52974125673e00508144/383128666c8ab799cl256ale00366ad3
!OpenDocument. In a similar case to Krofan, the Judicial Committee of the Privy Council in its
decision emphasized the importance of distinction: "International law, however, recognises the
necessity of distinguishing between belligerents and peaceful inhabitants. 'The separation of ar-
mies and peaceful inhabitants' wrote Spaight in War Rights on Land at p. 37, 'is perhaps the great-
est triumph of international law. Its effect in mitigating the evils of war has been incalculable."'
40. Parks, supra note 37, at 557-59.
41. Id. at 521.
42. Id. at 523.
43. AP I, supra note 1, art. 37.
44. 2 LASSA F.L. OPPENHEIM, A TREATISE: DISPUTES, WAR AND NEUTRALITY 430 (H.
Lauterpacht ed., 7th ed. 1952), quoted in Parks, supra note 37, at 521.
45. AP I, supra note 1, art. 85.
46. Id.
256
Richard B. Jackson
47. GC IV, supra note 36, art. 146.
48. NIAC MANUAL, supra note 7, at 43.
49. BOTHE, PARTSCH & SOLF, supra note 9, at 677.
50. AP II, supra note 8, art. 13.
51. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weap-
ons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 U.N.T.S. 137.
52. Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps
and Other Devices, May 3, 1996, S. Treaty Doc. No. 105-1 (1997). Similar treaty-based dis-
tinction requirements, specifically applicable in non-international armed conflict, can be
found in the Incendiary Weapons Protocol (Protocol III) to the Conventional Weapons Con-
vention and the Second Protocol to the 1954 Hague Cultural Property Convention. Protocol on
Prohibitions or Restrictions on the Use of Incendiary Weapons art. 2, Oct. 10, 1980, 1342
U.N.T.S. 171 & Second Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict, Mar. 26, 1999, 2253 U.N.T.S. 172, respectively.
53. l Customary International Humanitarian Law 26-28 (Jean-Marie Henckaerts &
Louise Doswald-Beck eds., 2005). The study provides persuasive evidence of the existence of a
"protective principle" of distinction in non-international armed conflict in the commentary to
Rule 7, which provides that "[t]he parties to the conflict must at all times distinguish between ci-
vilian objects and military objectives." Id. at 25.
54. Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, U 521 (Int'l Crim. Trib. for the
Former Yugoslavia Jan. 14, 2000), available at http://www.icty.Org/x/cases/kupreskic/tjug/en/
kup-tj000114e.pdf.
55. BOTHE, PARTSCH & SOLF, supra note 9, at 676.
56. See COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1 977 TO THE GENEVA CON-
VENTIONS OF 12 AUGUST 1949, J 4762 (Yves Sandoz, Christophe Swinarski & Bruno Zimmer-
mann eds., 1987), available at http://www.icrc.org/ihl.nsf/COM/475-7600 19?OpenDocument
[hereinafter COMMENTARY ON THE ADDITIONAL PROTOCOLS].
57. AP I, supra note 1, art. 51.
58. Commentary on the Additional Protocols, supra note 56, j 4764.
59. AP II, supra note 8, art. 4.
60. Hague Regulations, supra note 25, art. 23(d).
61. See, e.g., GC IV, supra note 36, art. 3. Common Article 3 is given more form and sub-
stance in Articles 4—6 of AP II, but its basic intent, to protect "[p]ersons taking no active part in
the hostilities, including members of the armed forces who have laid down their arms and those
placed hors de combatby sickness, wounds, detention, or any other cause," is the bedrock value of
the law of war that extends into non-international armed conflict.
62. NIAC MANUAL, supra note 7, U 2.3.6.2.
63. l Customary International Humanitarian Law, supra note 53, at 599.
64. Prosecutor v. Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdic-
tion, Case No. IT-94- 1 -1, J 94 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995), available
at http://www.icty.Org/x/cases/tadic/acdec/en/51002.htm [hereinafter Tadic].
65. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [here-
inafter Rome Statute]. But see also 10 U.S.C. § 950t(17) (2006):
USING TREACHERY OR PERFIDY.— Any person subject to this chapter who, after
inviting the confidence or belief of one or more persons that they were entitled to, or
obliged to accord, protection under the law of war, intentionally makes use of that
confidence or belief in killing, injuring, or capturing such person or persons shall be
257
Perfidy in Non-International Armed Conflicts
punished, if death results to one or more of the victims, by death or such other punish-
ment as a military commission under this chapter may direct, and, if death does not re-
sult to any of the victims, by such punishment, other than death, as a military
commission under this chapter may direct, (emphasis added)
66. See generally Maureen Orth, Operation Checkmate: Inside Colombia's Hostage War,
VANITY FAIR, Nov. 2008, available at http://www.vanityfair.com/politics/features/2008/ll/
hostages2008 1 1 . Some of the information concerning this operation was obtained by the author
directly from Colombian officials in briefings conducted in Colombia and the United States.
67. Compare id. ("the . . . soldier . . . was wearing a Red Cross bib, which was against the rules
of the Geneva Conventions"), with John C. Dehn, Permissible Perfidy?, 6 JOURNAL OF
INTERNATIONAL CRIMINAL JUSTICE 627, 653 (2008) ("the most satisfactory explanation for the
lack of any condemnation of this perfidious capture by the [International Committee of the Red
Cross] might be that the scope of the perfidy prohibition applicable in non-international armed
conflict is subject to question"). Even the FARC's lawyer, Rodolfo Rios, deemed the operation
"almost perfect," despite this "transgression." Orth, supra note 66.
68. For example, special agents of the Federal Bureau of Investigation do not wear uniforms
except during arrests or tactical assaults. The U.S. Secret Service has a uniformed division, but its
other agents wear civilian attire. Similarly, during the 1948-60 Malayan Emergency, British Co-
lonial Special Branch officers wore civilian or Min Yuen clothing during efforts to locate guerrilla
groups, often through mail drops, to persuade them to surrender, while so-called "pseudo-
gangs," attired in clothing like that of the Mau Mau, proved effective in a variety of ways during
the non-international armed conflict in Kenya. FRANK KlTSON, BUNCH OF FIVE 33-41, 168
(1977).
69. Counterinsurgency Manual, supra note 10, at 2- 1 ("The integration of civilian and mili-
tary efforts is crucial to successful COIN operations.").
70. Richard R. Baxter, So-Called "Unprivileged Belligerency": Spies, Guerrillas, and Saboteurs,
28 British Yearbook of International Law 323, 327 (1951).
7 1 . Tadic, supra note 64, ^ 1 25.
72. Sofaer, supra note 18, at 467.
73. Government's Response to the Defense Motion to Dismiss for Failure to State an Offense
and for Lack of Subject Matter Jurisdiction under R.M.C. 907, at 6, United States v. Jawad (Military
Commission Guantanamo Bay, Cuba, June 3, 2008), available at http://www.mc.mi1/Portals/0/
pdfs/Jawad%20(AE083%20-%20D007)%20Gov%20Resp%20to%20Def%20Mot.pdf.
74. United States v. Al-Nashiri, Charge Sheet, available at http://www.mc.mi1/Portals/0/
pdfs/Al%20Nashiri%20II%20(Referred%20Charges).pdf (last visited Feb. 7, 2012).
75. United States v. Jawad, Ruling on Defense Motion to Dismiss (Sept. 24, 2008) (motion to
dismiss on grounds of lack of subject matter jurisdiction), available at http://www.mc.mil/
CASES/MilitaryCommissions.aspx (follow Mohammed Jawad hyperlink under "Cases"). Trial
was never held in this case, however. Jawad was repatriated to Afghanistan, after charges were
dismissed without prejudice, following a successful habeas corpus petition.
76. Commentary to Geneva Convention I for the Amelioration of the
Condition of the wounded and Sick in Armed Forces in the Field 49-50 (Jean S. Pictet
ed., 1952).
77. Id. at 50. This comment, of course, raises the question of the applicability of human
rights norms in non-international armed conflict, a fascinating topic that is beyond the scope of
this paper.
78. Counterinsurgency Manual, supra note 10, at 1-1-1-19.
79. Id. atx.
258
Richard B. Jackson
80. Id.
8 1 . Compare generally the discussion of "imminence," under the Standing Rules of Engage-
ment in International and Operational Law Department, The Judge advocate
General's Legal Center and School, Operational Law Handbook 73-102 (201 1 ), with
the discussion of "rules for use of force" in CENTER FOR LAW AND MILITARY OPERATIONS, THE
Judge Advocate General's Legal Center and School, Domestic Operational Law
Handbook 175-91 (2011).
82. See, e.g., Headquarters, International Security Assistance Force, Tactical Directive (July
6, 2009), available at http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706
.pdf.
83. U.S. Forces-Afghanistan, Position Paper, US Military Forces' Wear of Military Uni-
forms in Afghanistan 8 (Mar. 28, 201 1) (on file with author).
84. Mat 3.
85. Id.
86. William H. Ferrell III, No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special
Operations in International Armed Conflict, 178 MILITARY LAW REVIEW 94, 121 (2003).
87. U.S. Forces-Afghanistan, Position Paper, supra note 83, at 5.
88. U.S. Forces-Afghanistan, Information Paper, Carrying of Weapons 1 (May 12, 2011)
(emphasis added) (on file with author).
89. Mat 2.
90. I would suggest, however, that the U.S. policy view is to apply the law of international
armed conflict "during all armed conflicts, however such conflicts are characterized, and in all
other military operations." See Department of Defense, DoD Directive 23 11.0 IE, DoD Law of
War Program ^f 4.1 (2006), available at http://www.dtic.mil/whs/directives/corres/pdf/231 10 le
.pdf. "Law of War" is defined as "[t]hat part of international law that regulates the conduct of
armed hostilities . . . [and] encompasses all international law for the conduct of hostilities bind-
ing on the United States or its individual citizens, including treaties and international agree-
ments to which the United States is a party, and applicable customary international law." Id.,
J 3.1. "It is DoD policy that . . . [t]he law of war obligations of the United States are observed and
enforced by the DoD Components and DoD contractors assigned to or accompanying deployed
Armed Forces." Id., J 4.2.
91. BOTHE, PARTSCH 8c SOLF, supra note 9, at 676.
92. Eve La Haye, War Crimes in Internal Armed Conflicts 67 (2008).
93. A.P.V. ROGERS, LAW ON THE BATTLEFIELD 225 (2004) (citing the Hague Regulations,
supra note 25, art. 23). There was discussion during the conference about whether "perfidy" or
"treacherous wounding" includes improper use of enemy military emblems, insignia, flags or
uniforms during combat in a non-international armed conflict. The authors of the NIAC Manual,
Professors Schmitt, Garraway and Dinstein, acknowledged they were wrong in including this
provision in the Manual. Compare Article 2.3.5 ("it is forbidden to make use of enemy military
emblems, insignia, flags or uniforms during combat"), with 2.3.6 ("[displaying the white flag
falsely, or pretending to surrender, be wounded or otherwise have a protected status is forbidden
if the intent in doing so is to kill or wound an adversary") of the NIAC MANUAL, supra note 7, at
42-43.
94. Rome Statute, supra note 65, art. 8(2)(e)(ix).
95. See supra text accompanying notes 71-75.
259
PART VI
RECENT AND ONGOING NON-
INTERNATIONAL ARMED CONFLICTS
XII
Non-International Armed Conflicts in the
Philippines
Raymundo B. Ferrer and Randolph G. Cabangbang*
Many U.S. soldiers serving in Joint Special Task Force-Philippines, with
extensive experience in Afghanistan, Iraq and other theaters of war, have
repeatedly described the non-international armed conflicts (NIACs) in Mindanao
as particularly complex. In an area where there is a strong gun culture, where local
residents are part-time insurgents and where kinship ties serve as force multipliers,
how indeed do we distinguish civilians from armed insurgents?
This article discusses NIACs in the Philippines and briefly notes the challenges
they pose to the security sector in applying the rules of international humanitarian
law (IHL). To provide a basic framework in understanding the nature of conflict in
the Philippines, we begin with an organizational-level analysis of the NIACs. How-
ever, it must be noted that on the ground, from the individual and operational lev-
els of analysis, it is not so neatly delineated. For example, organizational identities
in southern Mindanao, unlike in the West, are highly temporal and fluid. Civilians
can be recruited to work seasonally for an insurgent group and then quickly and
seamlessly resume their civilian lives after operations are completed. Added to this
complexity are the changing organizational labels civilians effortlessly assume
without much question. Some civilians may work for one insurgent group that has
* General Raymundo B. Ferrer, Armed Forces of the Philippines, and Lieutenant Colonel
Randolph G. Cabangbang (INF), Philippine Army.
Non-International Armed Conflicts in the Philippines
an outstanding peace agreement with the government and then on the same day
join a command structure of a known terrorist group. Then they very quickly
switch to supporting relatives and kin who belong to a group currently in peace
negotiations with the government.
Organizations in the Philippines revolve around personalities rather than posi-
tions. 1 While the Armed Forces of the Philippines (AFP) strives for interoperability
among its branches and with its allies, in Mindanao is an enemy for whom
interoperability seems like second nature. The NIACs in the Philippines are largely
a homegrown phenomenon with some components heavily influenced by foreign
elements. Conflicts rooted in ideologies outside the Philippines have been co-
opted to provide a philosophical justification to a grassroots-driven insurgency.
This article will primarily focus on two major NIACs facing the Philippines. For
convenience, they will be referred to as the two "Ms": the Maoist group and the
Moro group. Their origins will be traced and a description provided of their basic
strategies and structures.
The Communist Party of the Philippines (CPP) and its armed wing, the New
People's Army (NPA), use Maoist ideology to justify the armed struggle against the
government. The CPP is considered the biggest threat to the security of the Phil-
ippines. 2 Its scope is nationwide. While strongest in the northern region of the
Philippines, the Maoist group also has a presence in northern and eastern
Mindanao. It tends to target farmers in the rural areas, workers in the mining in-
dustry, teachers, youth, women's groups and many other segments of the work-
ing-class population that are vulnerable to the persuasion of the Maoist ideology
for recruitment. The Moro group, on the other hand, limits itself to the southern
Philippines. Like the CPP-NPA, it is also homegrown — a secessionist movement
that has been fighting for independence for more than a hundred years. Islamic
ideology inspires its members to fight for self-determination and recognition of
their ethnic identity.
The Maoist and Moro groups both exploit conditions of poverty and
marginalization in marshalling their armed struggle against the government. Ac-
cording to the Asian Development Bank, in 2008 about twenty-six million Filipi-
nos out of a total population of ninety- two million lived below the Asian poverty
line. 3 In other words, they lived on about US$ 1 .35 per day. The poorest of the poor
live in Muslim Mindanao. The Muslim poor are particularly marginalized from
mainstream Filipino society and this fuels much of their grievance against the
Philippine government. While the Maoist group targets people through their oc-
cupation, the Moro group appeals to ethnicity and shared history in its recruit-
ment efforts.
264
Raymundo B. Ferrer and Randolph G. Cabangbang
The Maoist Movement
The communist insurgency — the longest-running Maoist insurgency in the
world — is waged by the CPP and the NPA. In August 2002 the United States desig-
nated the NPA as a foreign terrorist organization. Not long after, in November
2005, so did the European Union. 4 The CPP-NPA — together with its legal arm, the
National Democratic Front of the Philippines (NDFP) 5 — seeks to overthrow the
Philippine government.
The CPP was established in 1968 as part of a larger sociological wave that was
then taking the world by storm — the rise of student activism in the 1960s and
1970s. Many scholars argue, however, that the roots of the organization could be
traced back to the Hukbalahap — a contraction of the Filipino term HukbongBayan
Laban sa mga Hapon, which means "People's Army against the Japanese." 6 Also
known as the Huks, these fighters mobilized against Japanese occupation. The
Huks were largely farmers from central Luzon, and were estimated by one source
to have about fifteen to twenty thousand active members and fifty thousand mem-
bers in reserve in the early 1940s. After World War II, the Huks moved on to wage a
guerrilla war against the government of the newly independent Philippines. 7 By the
early 1960s, the Huk campaign began to wane and the Sino-Soviet split at that time
further fractured the group. The CPP established itself as separate from the Soviet-
style Huk organization and in 1969 renamed the remnants of the Huks the New
People's Army. The current strength of the NPA is estimated to be around 4,200.
The Maoist group believes that the power of the gun is necessary to protect ordi-
nary citizens from human rights abuses perpetuated by the government and local
politicians. The NPA envisions a protracted people's war, ideally, that would bring
about the downfall of the status quo and the replacement of the Philippine govern-
ment by a socialist State. The modus operandi of the NPA involves the targeting of
foreign investors and businesses for extortion, or what it euphemistically terms
"revolutionary taxes." The ultimate goal is to drive these investors out of the Phil-
ippines and to bankrupt the economy. The NPA also assassinates individuals such
as politicians, members of the media and other personalities who, it deems, stand
in the way of its attaining its objectives.
It is observed that the general trend of the rise and fall of the CPP-NPA member-
ship coincides with the level of violence associated with each presidential adminis-
tration. During the Marcos era (1965 to 1986), rampant human rights abuses
fueled the rise of membership in the CPP-NPA. Followers of Marx and Mao in
Philippine colleges and universities formed student organizations that protested
the plight of farmers in the countryside and the urban poor. Anti-government ac-
tivism was fashionable back in the 1970s. College students then did not carry cell
265
Non-International Armed Conflicts in the Philippines
phones. Instead, they carried a small red book which they used as a reference when
they gathered together to talk about the ideology of Mao Tse-tung and a classless
society.
In 1972, Marcos declared martial law and for the next thirteen years under his
dictatorial regime the CPP attracted many recruits. That trend shifted in 1986
when Corazon "Cory" Aquino, the mother of the current president, Benigno
"Noynoy" Aquino, came to power. She became the first woman president through
the seminal People's Power movement in 1986 that was largely propelled by the
outpouring of outrage against Marcos over the assassination three years earlier of
her husband, Ninoy. 8 Early in Cory's term (1986 to 1992), a ceasefire with the NPA
was declared, political prisoners were released and peace talks with the CPP-NPA-
NDFP were initiated. When the talks collapsed in 1987, the NPA returned to arms.
The situation worsened when security forces violently dispersed and killed some
peasants rallying for land reform one year after Cory assumed power. Acting under
the advice of the United States, Cory launched a total war against the NPA.
Sustained military offensives successfully reduced the communist forces from
25,200 in 1987 to 14,800 in 1991. A two-pronged strategy was used that could be
described in current counterinsurgency parlance as hard power, or military offen-
sive, combined with soft power, or socioeconomic development. In addition to the
government actions, there were also brutal purges within the Maoist group that
further demoralized its rank and file. 9 Following the attacks of September 11, 2001,
the NPA declared an all-out war against the central government, believing it to be
controlled by the United States as part of its global war on terror. Although the
NPA is unlikely to win a military victory against government forces, its presence
persists in the countryside where poverty, injustice and the lack of social services
provide conditions for marshaling people's grievances against the government.
The Moro Front — Three Forms of Struggle
In addition to fueling the CPP insurgency, the oppressive rule of former President
Marcos's martial law in the 1970s triggered the Moro outcry against the central gov-
ernment, which they believed to be the cause of Moro suffering. As with the CPP-
NPA, the perception of marginalization drives the underlying anger that fuels the
Moro armed struggle. In contrast to the CPP-NPA, the secessionist Moro insur-
gency largely limits its armed struggle to the southern portion of the country,
where the majority of Muslim Filipinos reside. For three centuries under Spanish
rule and nearly fifty years of U.S. dominance in the Philippines, the Moros were
never conquered as a group. Today, they feel that they have to live under the
266
Raymundo B. Ferrer and Randolph G. Cabangbang
Filipino Christian rule of the central government and abide by its non-Islamic way
of governance.
Philippine Muslim academic Macapado Muslim neatly summarized six key el-
ements in the Moro grievance: economic marginalization and destitution, politi-
cal domination, physical insecurity, threatened Moro and Islamic identity, a
perception that government is the principal culprit and a perception of hopeless-
ness under the present order of things. 10 Indeed, on the matter of economic
marginalization and destitution, the regions where most Muslims reside in
Mindanao still remain among the poorest regions in the Philippines. Unemploy-
ment, illiteracy and poverty rates are highest in Muslim Mindanao. 11 In terms of
political representation in the government, Muslims in Mindanao still feel that
they do not have a voice in the central government. 12 And while tremendous
gains have been made over the past several years to reduce the extremist hold in
the various islands in Mindanao, physical security for the residents has still not
reached an acceptable level. There is more to be done in order to encourage
business investments in Mindanao and change the perception of rampant law-
lessness in the islands.
Secessionist Moro groups have been insisting on the notion of a Moro and Is-
lamic identity as justification for their right to have some form of self-determination.
One of these groups, the Moro Islamic Liberation Front (MILF), was seeking inde-
pendence for southern Mindanao, but a Supreme Court decision held that a draft
settlement with the government that would have given the MILF control over large
areas of Mindanao was unconstitutional. Now under the peace process it is pursu-
ing with the central government, the MILF is asking to become a sub-state of the
Philippines in which the political structure would be similar to the federal system
of the United States. 13
The fifth and sixth elements are also related to the Moro identity — namely, the
perception of the inability of the central government to understand Muslim
Mindanao and the general apathy of most politicians in the north toward matters
concerning the south. Marginalization of the south has always been an effective
rallying cry for those who seek to manipulate Moro grievances to gain support for
ultimately extremist causes. The perception of the hopelessness of the status quo is
partly driving the moral justification for an armed struggle in southern Mindanao.
The current Philippine president is trusted, however, by many Muslims and the at-
tempt by the central government in Manila to extend various social services into
the far reaches of Mindanao is slowly defeating the perception of hopelessness in
many Muslim sectors in the southern Philippines.
These six elements of Muslim grievances have been used in one form or another
in the rhetoric of many insurgent groups. There are three major Moro insurgent
267
Non-International Armed Conflicts in the Philippines
groups engaged in violence in the southern Philippines. These are the Moro Na-
tional Liberation Front (MNLF), the notorious Abu Sayyaf Group (ASG) and the
MILF. 14 As defined by IHL, 15 only the MILF among these three can truly be consid-
ered as engaged in a NIAC — it has a clear leadership and an organizational struc-
ture to implement whatever agreements it may forge with the State, as well as an
armed force that it can use to pursue its belligerent agenda. The MNLF, on the
other hand, signed a Final Peace Agreement with the government in 1996, 16 al-
though it argues that such has not been fully implemented. For its part, the ASG
lacks command and control and in many ways, like the MNLF, no longer possesses
a formidable armed capability. The MILF remains as the largest fighting force with
an agenda of carving a distinct territory for itself in the southern Philippines.
The MNLF and the Origins of the MILF
Around the same time the CPP-NPA was formed, Nur Misuari, who was very
much influenced by Maoist ideology, founded the MNLF in 1972 and started an
underground youth movement in Mindanao. His goal was to free Muslims from
what he described as the terror, oppression and tyranny of Filipino colonialism,
and to secure a free and independent State for the Bangsamoro. 17 Bangsa means
"country" or "nation." Moro is derived from the term early Spanish colonizers used
to refer to the Moors and has over time become the collective word used for all the
various Muslim ethnic groups in Mindanao. Muslims in Mindanao turned this pe-
jorative term into a badge of honor. Bangsamoro means "Moro Nation." When
Nur Misuari declared jihad against the Philippine government in 1972, the MNLF
led the armed resistance of all Muslims in Mindanao against martial law. The
MNLF became the organizational vehicle that symbolized the Moro cause of thir-
teen disparate Islamized ethno-linguistic groups in Mindanao; their aim was and is
the establishment of an independent Moro nation.
Four years of bloody war in Mindanao prompted the Organization of Islamic
Cooperation 18 to pressure the MNLF to accept some form of political autonomy in
lieu of secession and independence. The MNLF signed the Tripoli Agreement in
1976, 19 but frustrations over its implementation a year later led Misuari to revert to
armed struggle, while his Vice Chairman, Salamat Hashim, broke away from the
MNLF to establish the MILF as the second Moro secessionist group in 1984. The
MNLF-MILF split was largely based on differences in political strategy and ideo-
logical orientation. The MILF could be described as Islamic revivalist, while the
MNLF is more secular-nationalist. Hashim of the MILF wanted to push the peace
process under the Tripoli Agreement; this commitment to peace negotiations re-
mains one of the defining points of the MILF. The MNLF, however, believes the
268
Raymundo B. Ferrer and Randolph G. Cabangbang
use of force — the same type of armed struggle in which the Maoists of the NPA en-
gage — is necessary to the achievement of peace in the southern Philippines.
The MILF wants to govern the Moro homeland under the ideals of Islam and
Shari'ah law. Religion is central to the workings of the MILF, as can be seen in the
active involvement of ulama, or Islamic scholars, in the leadership and internal or-
ganization of the group. The MNLF, on the other hand, largely concerns itself with
fighting for independence. The leadership style of the MILF is consultative with a
central committee that drives the organization's agenda, while the MNLF has cen-
tralized decision making that revolves around the group's leader. In addition, the
MILF is mostly dominated by the Maguindanaos from central Mindanao, while
the MNLF is largely composed of ethnic Tausugs, the warrior class, from the Sulu
Archipelago. Traditionally, these two Muslim tribes could not stand each other.
The rise of the MILF coincided with Misuari's declining influence. The MNLF
became increasingly fragmented in 1982 and ceased to be a formidable fighting
force after signing the Final Peace Agreement. Some of the MNLF rebels were inte-
grated into the armed forces and national police, and some joined various liveli-
hood programs to help them reintegrate into society. Many of the livelihood
programs were successfully sponsored by the United States Agency for Interna-
tional Development and the United Nations Development Program. Fisheries,
seaweed farming and various other livelihood programs benefited many former
MNLF rebels in the Sulu Archipelago.
The MILF Today
The twelve-thousand-strong MILF is the largest Muslim guerrilla group today and
the most potent security threat in Mindanao. It is mainly based in central
Mindanao, although it has a presence in Palawan, Basilan and other islands in the
Sulu Archipelago. Since 1997, it has been pursuing what many describe as an on-
and-off peace negotiation with the government. During this period, however, sev-
eral breakaway groups have continued to engage government forces in armed con-
flict. To date, about 120,000 people have been killed and about two million people
displaced from their homes as a result of MILF-led encounters with government
forces.
The latest major conflict was in 2008 when the government of the Philippines
initialed the Memorandum of Agreement on the Ancestral Domain (MOA-AD)
that gave the MILF its own distinct territory, with 'a governing body called the
Bangsamoro Juridical Entity. 20 Before the agreement could be signed, however,
certain non-Muslim leaders in central Mindanao received a copy of the embargoed
MOA-AD and began a campaign to undo the agreement, claiming that part of the
269
Non-International Armed Conflicts in the Philippines
territory covered by the MOA-AD included areas that were never under Muslim
leadership. A Christian Vice Governor of a Mindanao province declared that if the
MOA-AD was signed there would be bloodshed. Other non-Muslim leaders in
other parts of Mindanao filed a separate petition asking the government not to sign
the agreement.
The non-Muslim groups were able to bring enough political pressure to prompt
the Supreme Court to issue a temporary restraining order preventing signature of
the agreement. When the signing ceremony of the MOA-AD was aborted, MILF
renegade commanders went on a rampage and attacked villages in northern and
central Mindanao. 21 Hundreds died and about 390,000 people were displaced in
what is considered to be a NIAC. The Supreme Court eventually declared the
MOA-AD to be unconstitutional and Philippine military forces engaged the three
renegade MILF commanders. One of those commanders, Ameril Umra Kato,
broke away from the MILF and recently spoke of taking up arms if the current gov-
ernment of the Philippines-MILF peace process fails again or is endlessly delayed.
The MILF leaders put forth significant effort to bring an international audience
into the peace negotiations. An International Monitoring Team, composed of repre-
sentatives from Malaysia, Brunei, Libya, Japan, Norway and the European Union,
oversees the 2001 ceasefire agreement between the MILF and the government of
the Philippines. With international monitoring, over seventy agreements have
been reached between the MILF and the Philippine government since 1997.
Alliance with the Abu Sayyaf Group
One Moro group without any form of ceasefire agreement with the government is
the ASG. Although the conflict with the ASG now consists of isolated and sporadic
acts of violence and thus does not meet the threshold requirement of a "protracted
armed conflict" against an "organized armed group" to be classified as a NIAC, 22
the ASG does have tactical alliances with the MILF and in the conflict's early years it
could be argued that it was a NIAC.
The inspiration for the al Qaeda-linked ASG came from radical Islamism — no-
tably the jihad against the Soviet invasion of Afghanistan. Around the time that the
MNLF was engaged in peace negotiations with the Philippine government in the
late 1980s/early 1990s, an underground movement of disenchanted youth began to
be mobilized by a charismatic preacher in Basilan, Abdurajak Abubakar Janjalani.
He wanted an independent State for the Muslims in Mindanao. Academics con-
tinue to debate whether Janjalani participated in the fighting against the Soviets
during the Afghanistan war. Regardless of whether he did or did not participate,
the primary driving force behind the ASG's formation was the perception by many
270
Raymundo B. Ferrer and Randolph G. Cabangbang
idealistic Muslim youth that the MNLF had engaged in a jihadist war that it failed
to complete. The disenchanted Muslim youth felt that the older cadres had aban-
doned the spirit of the Bangsamoro's 1970s struggle against the government. They
felt the MNLF leaders had betrayed their cause and acquiesced to the Philippine
government when it entered into peace negotiations.
Janjalani formally founded the ASG in 1992 and justified his jihad-based vio-
lence on the following arguments: ( 1 ) the Philippine government with the help of
its Christian allies, notably the United States, severely oppressed the Bangsamoro
people; (2) this oppression occurred because of the unwelcome intrusion of Chris-
tians into the Muslim homeland; (3) to defeat this oppression, the struggle for the
cause of Allah must be waged against the Christian invaders; and (4) it was the per-
sonal obligation of every Muslim to carry out this jihad and failure to do so would
be a sin against Allah.
Obviously, many of the ideals espoused by the group overlap with those of the
MILF; thus, the movement of members between these groups tends to be seamless.
Additionally, many of the members of the two groups are related through blood
ties.
Driven by its secessionist and extreme Islamic ideology, the ASG quickly became
internationalized with the involvement of the Jemaah Islamiyah, 23 whose goal is to
establish a Muslim caliphate throughout Southeast Asia. With the death of
Janjalani and the demise of several key ASG leaders, the ASG's jihadist ideological
fervor has died down, particularly among the rank and file. Many argue that the
ASG has now been reduced to a criminal band. 24 Kidnapping has always been a
consistent staple for the ASG to raise funds, prompting many observers to argue
that Janjalani's jihad has become a cloak to justify the criminality of the ASG. While
the long-time ASG members remain loyal to the original cause that led to the orga-
nization's establishment, the financial pressures, lack of loyalty among the rank
and file and the U.S. -backed military offensives against the ASG have degraded the
once notorious Moro fighters into a bunch of thugs.
Challenges in Applying the Rules oflHL
IHL rules, for humanitarian reasons, seek to limit the harmful effects of wars and
armed conflicts on non-participants. While these rules do not prevent the use of
force by the State, IHL restricts the means and methods that may be employed.
Memorandum Order 9, issued on August 7, 1998, directed Philippine security
forces to implement the Comprehensive Agreement on Respect for Human Rights
and the International Humanitarian Law (CARHRIHL) that was signed by the
NDFP and the Philippine government five months earlier in The Hague. 25 Prior to
271
Non-International Armed Conflicts in the Philippines
the issuance of the order, the issue of human rights protection and the application
of IHL rules were not clearly spelled out to the parties to the ongoing NIAC.
For over forty years, the two concurrent NIACs in the southern Philippines have
extracted an exorbitant toll in the number of lives lost, damage to property, expen-
diture of government resources and economic opportunities lost due to the pro-
longed conflicts. The social cost of the conflict in terms of damaged social cohesion
and the diaspora of Muslims in Mindanao is arguably much greater. During the
early years of the conflict, there were indeed IHL violations committed by the major
players — government forces, Moro rebels and communist insurgents. Most of the
abuses blamed on the government forces happened during the martial law years
from 1972 to 1981. Reports on the protracted conflicts, however, make it appear
that there were widespread and continuing violations of human rights. 26
In fact, during the early years of the Moro secessionist and the Maoist commu-
nist insurgencies, NIAC rules were not at all clear to State security forces. The Cold
War period was characterized by wars of national liberation or internal wars. The
four 1949 Geneva Conventions were a product of World War II and, except for
Common Article 3, applied only to international armed conflict. Additional
Protocols I and II to the 1949 conventions, the latter of which applies to non-
international armed conflicts, were not agreed to until 1977. These rules would
emerge after both the NPA and the MNLF had initiated hostilities with the State
military forces.
The AFP has been involved in internal security operations since martial law was
declared by President Marcos in September 1972. Since then, the AFP and the Phil-
ippine National Police have been performing both law enforcement and combat
operations against insurgent groups. For lack of an understood legal framework,
human rights law and IHL rules were confusing when applied to these two types of
missions.
The nature of the NIAC in the Philippines today and the operational strategies
employed by insurgent groups pose serious challenges to adherence to IHL. Dis-
cussed below are some of these challenges.
Principle of Distinction
The principle of distinction requires that combatants be distinguished from non-
combatants in carrying out military operations and that only the former may be
the direct object of attack. This principle has, at times, been difficult to implement.
The often-used phrase to describe the dilemma faced by the AFP is "a farmer by day
and a guerrilla by night." This phrase is literally true in the case of NPA militia
members, who can be both farmers and fighters. Even though IHL permits these
farmer/ fighters to be targeted at all times, since they are members of an organized
272
Raymundo B. Ferrer and Randolph G. Cabangbang
armed group performing a continuous combat function, this is extremely difficult
in practice, because their failure to distinguish themselves from the civilian popu-
lation makes the issue of identification a difficult one.
Another issue is that the NPA routinely engages in conduct that would be per-
fidious in international armed conflict. Regular communist guerrillas usually carry
guns similar to those issued to the State security forces. Disguised in regulation
government uniforms and bearing arms, the insurgents deceive civilians enough to
avoid detection and get inside police stations or military detachments to success-
fully conduct raids.
In addition, the NPA routinely uses unarmed civilians as couriers and messen-
gers, as an early warning system and as bearers of logistics for their fighters. Al-
though this is not a distinction issue, when arrested they simply deny their
participation in NPA activities. In most cases such arrests are carried out by gov-
ernment forces based only on intelligence information. While no arrest is made
until the intelligence information has been corroborated by informants or cap-
tured enemy personnel, courts hold this is insufficient to gain a conviction with-
out accompanying physical evidence that, in most cases, cannot be supplied. The
result is a cycle of arrest followed by release and return to participation in NPA
operations.
In their operations, communist guerrillas are known to mingle with civilians.
They move around villages, engaging in propaganda work and soliciting food-
stuffs. When government troops come upon them in the villages, civilians can get
caught in the crossfire. Also, within NPA camps, civilians, who are generally rela-
tives of the rebels, are utilized as cooks, for various errands in support of the NPA
or as lookouts. While these camps are situated well away from civilian villages and
can be targeted without risk to the inhabitants of those villages, endangering the ci-
vilians within the camps can be characterized as a human rights issue for the NPA's
propagandists to exploit.
For the members of the MILF, on the other hand, their camps are also their
communities. It is not uncommon for MILF villages to be fortified with trenches,
firing positions, outposts, guard posts and other defense structures. Usually, Mus-
lims build a mosque or madrasah within their camps around which, because of the
communal nature of their society, houses are clustered. During ceasefires, the MILF
members have their families staying in the camps to farm and do other chores.
The AFP does not have precision-guided munitions/in its inventory. While the
munitions employed by the AFP are sufficiently discriminate to meet the require-
ments of the law of armed conflict, civilian objects are sometimes hit by the AFP's
bombs or artillery rounds. In order to minimize these occurrences, the AFP has
273
Non-International Armed Conflicts in the Philippines
established a rule of engagement (ROE) whereby a forward air controller or a for-
ward observer is required to be present before engaging a target with indirect fire.
Most MILF members are part-time farmers and part-time fighters. During en-
gagements with military forces, they shift easily from civilian status to fighters. The
MILF also has women members who serve as auxiliaries and are employed to carry
the ammunition, food and medical supplies. Because of these circumstances, military
operations frequently result in internal displacements, especially to the families of
MILF members. It is required, therefore, that before offensives, evacuation areas be
coordinated with the local government to ensure the safety of the internally dis-
placed persons (IDPs), many of whom are family members of the MILF active
fighters. This humanitarian consideration can work to the advantage of the MILF
members. Food and medical supplies distributed to the IDPs have been known to
end up with the MILF fighters, legitimately raising the need to control the distribu-
tion of relief goods to ensure they are not passed on by the IDPs to the MILF
combatants.
Principle of Proportionality and Limitations on the Use of Means and
Methods of Combat
This principle is generally addressed in AFP ROEs issued by higher authorities to
operational commanders. It is, for example, generally prohibited to use artillery or
bombs to attack NPA camps unless the camp is well fortified, since the NPA uses
only light weapons, 27 and since the use of higher-order weapons has the potential
to cause excessive fear among civilians living nearby.
In the case of the MILF, which has well-fortified camps in or around its commu-
nities, it is sometimes necessary to use artillery or bombs to neutralize these strong-
holds. Care is taken during the early stages of the hostilities, however, to avoid
targeting the center of the camp, where the houses are clustered, on the assumption
that these could still be occupied by civilian family members.
Children Involved in Armed Conflict
Both the Maoist group and the MILF use children as child soldiers. There have
been many incidents when our troops have captured child soldiers, both male and
female.
Landmines
Landmines of various types continue to be used by all rebel groups — NPA, MILF,
MNLF, ASG. Some are used in accordance with IHL; some are not. In the period
2000-2006, total reported casualties (killed and wounded) from landmines and
improvised explosive devices were 362, of which 299 were soldiers and policemen,
274
Raymundo B. Ferrer and Randolph G. Cabangbang
while 63 were civilians, some of them children. The NPA commonly uses improvised
command-detonated anti-personnel mines and anti-vehicle mines. In recent years
it has extensively used improvised claymore mines in command-detonated mode,
using scrap metal in lieu of steel balls. Because of CARHRIHL, the CPP-NPA-
NDFP made certain commitments which were generally consistent with IHL rules
on the use of landmines.
Unexploded Ordnance and Explosive Remnants of War
Unexploded ordnance (UXO) or explosive remnants of war (ERW) left in the bat-
tlefield pose danger to IDPs returning to their homes and farms in conflict-affected
areas. As a result, during the cessation of hostilities, the AFP is undertaking an extra
effort to recover these UXOs and ERW. 28
Proliferation of Small Arms and Light Weapons
Small arms and light weapons proliferate in the Philippines, complicating the
armed conflicts, particularly in the southern Philippines. There are an estimated
one million licensed firearms in the country and more than two million illegally ac-
quired firearms in Mindanao alone. 29 The proliferation of small arms and light
weapons contributes to the formation of private armed groups and warlordism, as
well as the frequency and intensity of lawlessness and clan wars in Mindanao.
Addressing NIACs in the Southern Philippines
There are parallel peace tracks currently under way in connection with the non-
international armed conflicts in the southern Philippines under which the Philip-
pine government is pursuing peace negotiations with both the CPP-NPA and the
MILF.
Today's environment is one in which localized conflicts have become increas-
ingly intertwined with the social values of a larger international audience, bringing
about the downfall of institutions and governments. Small grassroots movements
and extremist cells throughout the world have capitalized on social media net-
works to gain sympathy from an international audience all too willing to impose its
moral values and judgments on the legitimacy of armed conflicts. In the case of the
Philippines, however, one could argue that these two NIACs, with long roots in the
past, largely remain outside the reach of an increasingly globalized world. These
NIACs appear to be propagated in the hearts and minds of people who simply re-
fuse to let go of the past.
Yet there is hope for a future generation in which the fatigue of war and the
rhetoric of grievance no longer inspire the same intense anger. Experience in
275
Non-International Armed Conflicts in the Philippines
working with various communities has demonstrated that promoting peace is
another way to defeat the enemy. We have learned that people will behave ac-
cording to the way they are viewed — if treated as an enemy, then they will be-
come one; if treated as partners they will respond in kind. With all their
complexities, the non-international armed conflicts in the Philippines could be
viewed simply as a cry for human security — the need to lead a dignified way of life
where the basic necessities of survival become a fundamental right for each and
every individual. If that need can be met, peace may follow.
Notes
1 . BrandLab, The Mindanao-Sulu Power Game: An Ethnography of Emergent Players —
Final Report (201 1) (on file with authors). This is a commissioned research report recently com-
pleted for a restricted audience.
2. Deputy Chief of Staff for Intelligence, J2, Armed Forces of the Philippines, First Semester
201 1 Intelligence Report (201 1 ). This restricted source is also used for figures on enemy strength
and operational strategies employed by armed threat groups that are cited elsewhere in this
paper.
3. Ifzal Ali, Launch of Key Indicators 2008: Introducing the Asian Poverty Line (Aug. 27,
2008), http://beta.adb.org/news/podcasts/launch-key-indicators-2008-introducing-asian-poverty
-line?page=5.
4. See NPA transforms into a terrorist group, says AFP, BALITA.PH, http://balita.ph/2010/03/
28/npa-transforms-into-terrorist-group-says-afp/ (Mar. 28, 2010).
5. The NDFP serves as the umbrella for various mass organizations of Maoist persuasion.
6. The Huk Rebellion in the Philippines 1946-1954, OnWAR.COM, http://www.onwar.com/
aced/data/papa/philippines 1946.htm (last visited Oct. 26, 2011).
7. For a history of the Huk rebellion, see RONALD E. DOLAN, PHILIPPINES: A COUNTRY
STUDY (1991), available at http://countrystudies.us/philippines/ (then follow "The Huk Rebel-
lion" hyperlink). For a history of both the Huk campaign against the Japanese occupation and
the Huk rebellion, see LAWRENCE M. GREENBURG, U.S. ARMY CENTER OF MILITARY HISTORY,
The Hukbalahap Insurrection: A Case Study of a Successful Anti-Insurgency
OPERATION IN THE PHILIPPINES, 1946-1955 (1987), available at http://www.history.army.mil/
books/coldwar/huk/huk-fm.htm.
8. Ninoy, or Senator Benigno Aquino Jr., was recognized as the staunchest critic of the
Marcos regime. He was assassinated on August 21, 1983.
9. See Patricio N. Abinales, Shifting tactics: Notes on civil society politics and the power of the
local in the Philippines, 25 TAMBARA 73-96 (2008).
10. Macapado A. Muslim, The Moro Armed Struggle in the Philippines: The
Nonviolent Autonomy Alternative (1994).
11. See Human Development Network, Philippine Human Development Report
2005: Peace, Human Security and Human Development in the Philippines (2d ed. 2005).
1 2. Positive changes may yet emerge to improve political participation in the ongoing peace
process and the political will of the current president to address the Moro problem.
1 3. The sub-state proposal of the MILF is also proving to be a thorny issue that has yet to be
resolved by the ongoing talks between the government of the Philippines-MILF peace panels.
276
Raytnundo B. Ferrer and Randolph G. Cabangbang
See Carolyn O. Arguillas, "Heaven and Earth" says MILF on GPH proposal; "Not too far apart,"
says GPH, MlNDANEWS.COM (Aug. 24, 2011), http://www.mindanews.com/top-stories/2011/08/
24/"heaven-and-earth"-says-milf-on-gph-proposal-"not-too-far-apart"-says-gph/.
14. In 1984, the MILF spun off from its founding organization, the MNLF.
15. See the Rome Statute of the International Criminal Court, which defines non-
international armed conflicts as "armed conflicts that take place in the territory of a State when
there is protracted armed conflict between governmental authorities and organized armed
groups or between such groups." Rome Statute of the International Criminal Court art.
8(2)(f), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
16. Available at http://bangsamoromnlf.blogspot.com/2011/03/mnlf-philippines-final
-peace-agreement.html.
17. See Thomas M. McKenna, Muslim Rulers and Rebels: Everyday Politics and
armed Separatism in the Southern Philippines 164 (1998).
18. Formerly the Organization of the Islamic Conference, the Organization of Islamic Co-
operation (OIC) was established in 1969 and now consists of fifty-seven member States. The OIC
describes itself as "the collective voice of the Muslim world and ensuring [sic] to safeguard and
protect the interests of the Muslim world in the spirit of promoting international peace and har-
mony among various peoples of the world." About OIC, ORGANIZATION OF ISLAMIC
COOPERATION, http://www.oic-oci.org/home.asp (last visited Oct. 26, 201 1). The OIC mediated
talks in 1975 and 1976 that led to the Tripoli Agreement, infra note 19.
19. Available at http://bangsamoromnlf.blogspot.com/2011/03/mnlf-philippines-tripoli
-agreement-of.html.
20. For a discussion of the proposed Bangsamoro Juridical Entity, see Datu Michael O.
Mastura, A Time for Reckoning for the Bangsamoro Struggle, 24 TAMBARA 91 (2008).
21. Data used in this section come from a paper commissioned by the Government of the
Philippines-UN Act for Peace Programme on the issue of internally displaced persons in se-
lected areas of Mindanao. The program was implemented by the Mindanao Economic Develop-
ment Council and the Autonomous Region in Muslim Mindanao in 2010 to provide an overview
and analysis of the IDP situation in these selected areas to contribute to a better understanding
and awareness of its complexity and to generate policy recommendations that will guide future
actions and programs for the internally displaced.
22. Rome Statute, supra note 15.
23. Jemaah Islamiyah has been designated a foreign terrorist organization by the U.S. De-
partment of State.
24. The perception of the ASG's transition from revolutionary to criminality is noted by
community residents on Jolo and Basilan islands, where ASG presence had been and continues
to be strongest. See GAIL T. ILAGAN, THE MINDANAO RESILIENT COMMUNITIES PROJECT
Report 42-47 (2011).
25. Implementation of the CARHRIHL would only be activated in 2004 with the formation
of the government of the Philippines-National Democratic Front Joint Monitoring Committee.
In December 2005, the NDFP Human Rights Monitoring Committee published a primer on the
CARHRIHL that summarizes the points of the agreement. NDFP Human Rights Monitoring
Committee, Primer on the CARHRIHL (2005), available at http://www.scribd.com/doc/
19432075/Primer-on-the-Carhrihl-by-the-NDFP. The CARHRIHL itself is available at http://
peacebuilderscommunity.org/documents/CARHRIHL.pdf (last visited Oct. 26, 2011).
26. In the southern Philippines the conflicts were made more complicated by the prolifera-
tion of arms. Also, civilian armed groups and vigilante groups are utilized to serve the personal
interests of political warlords. See SOLIMAN M. SANTOS JR. & PAZ VERDADES M. SANTOS,
277
Non-International Armed Conflicts in the Philippines
Primed and Purposeful: armed Groups and Human Security Efforts in the Philip-
pines 231-54 (2010), available at http://www.humansecuritygateway.com/documents/SAS
_ArmedGroups_HumanSecurityEfforts_Philippines.pdf.
27. The NPA only has a few mortars and usually uses light machine guns to defend its positions.
28. See SOLIMAN M. SANTOS, PRIMER ON LANDMINES ISSUE AND BILL IN THE PHILIPPINES
28-30 (2d ed. 2010).
29. See SANTOS & SANTOS, supra note 26.
278
XIII
Twenty-First-Century Challenges:
The Use of Military Forces to Combat
Criminal Threats
Juan Carlos Gomez*
J cant change the direction of the wind, hut I can adjust my sails to always
reach my destination. 1
G
Introduction
legalization confronts governments with new threats. Moises Nairn, editor
of Foreign Policy, described these threats as follows:
The illegal trade in drugs, arms, intellectual property, people, and money is booming.
Like the war on terrorism, the fight to control these illicit markets pits governments
against agile, stateless, and resourceful networks empowered by globalization. Govern-
ments will continue to lose these wars until they adopt new strategies to deal with a
larger, unprecedented struggle that now shapes the world as much as confrontations
between nation-states once did. 2 -
The use of military forces by democratic States in the fight against these criminal
threats is viable and necessary; however, it is important to know when and how
military forces maybe used legitimately. To do so, it is necessary to understand the
transformation of the threat — armed groups, which once challenged governments
* Colonel, Colombian Air Force.
The Use of Military Forces to Combat Criminal Threats
over ideology, now seek financial gain for themselves. While allegedly espousing
ideological politics at both ends of the political spectrum (extreme left and right),
these groups have created sinister alliances that ignore geographic and political
boundaries. 3 This transformation challenges State security and puts the institu-
tional structures of democratic States at risk.
In confronting this new reality, military forces must adapt if they are to effec-
tively neutralize this merger of criminal gangs and terrorist groups. The theories
and concepts that guided the State-on-State battlefields of the nineteenth and
twentieth centuries, where the opposing belligerents could distinguish their enemy
and when guerrilla warfare was conducted in isolated areas far from population
centers, will be inadequate to address the new challenge of the criminal terrorist. 4
Rather, new theories and guidance must be developed if military forces are to be
successfully employed in this new form of conflict.
Similarly, military forces must develop an understanding of the law that will
apply when combating these criminal/terrorist groups. That law will come from
human rights law (HRL) 5 and international humanitarian law (IHL), 6 which in
"classic" international law are referred to as "the law of peace" and the "law of war,"
respectively. The determination of when each will apply presents new challenges
for military forces that have traditionally focused on the law applicable to interna-
tional armed conflict.
This article will explore these issues from a Colombian perspective, a country
which has been engaged for decades in an armed struggle with insurgent groups
and now also with criminal groups using terrorist tactics for economic gain
through the drug trade. 7
The Legal Framework for the Use of Force
Human rights law transformed traditional Westphalian sovereignty by providing
that international law can extend into a State and regulate the relationship be-
tween an individual citizen and the government. In its specifics, HRL addresses
many aspects of an individual's relationship with the government, such as partici-
pation in the political process. However, it is HRL's regulation of an individual's
encounters with law enforcement agents and the courts that is the most relevant
when considering actions that are taken against the criminal terrorist. These
norms are designed to protect the citizen from unlawful government actions,
while at the same time providing law enforcement agencies the ability to protect
citizens from criminal actions and for the judicial system to punish those who do
commit crimes.
280
Juan Carlos Gomez
On the other hand, international humanitarian law permits the use of force to
restore peace in international and non-international conflicts, while at the same
time minimizing unnecessary suffering to civilians and damage to civilian objects.
IHL has evolved since its inception, particularly in the post-World War II era, with
the four 1949 Geneva Conventions, the two 1977 Additional Protocols and numer-
ous conventions regulating the use of some weapons and outlawing others. One
feature of this evolution has been the expansion of IHL from its application solely
to international armed conflict to non-international or internal armed conflict.
It is this law that regulates Colombian military forces in the conduct of military op-
erations against the well-organized, well-equipped narco-trafficking groups oper-
ating within Colombia.
Human Rights or International Humanitarian Law — Which Governs?
Unfortunately, what seems to be the clear delineation between HRL ("law of
peace") and IHL ("law of war") becomes gray in internal conflicts arising from the
new threats that confront governments. Traditionally, counternarcotic efforts
were law enforcement in nature, even in a country such as the United States which
declared a "war on drugs." As such, HRL was the component of international law
that applied to those efforts. The illegal armed groups operating within Colombia,
however, clearly fulfill the definition of an "organized armed group," which, when
combined with the level of violence in which they engage, permits the use of force
under the IHL applicable to non-international armed conflicts to be applied
against them. That the motive for the use of violence is now economic versus polit-
ical makes no difference. However, while the right to use military force against
these groups is clear, the ability to do so is difficult because they camouflage them-
selves within the civilian population. There the application of force against them is
even more difficult than it was when they operated in isolated jungle-covered areas
of the country.
In using force in this new battlefield, mistakes have been made by the armed
forces. This has strained the credibility of Colombian government institutions re-
sponsible for the conduct of military operations and led to criminal prosecutions
of those involved. While it remains clear that the level of threat continues to re-
quire the involvement of Colombian military forces 8 applying offensive and lethal
force, it is equally clear that every reasonable precaution must be taken to ensure
that the use of that force is directed only against legitimate military objectives in ac-
cordance with IHL.
281
The Use of Military Forces to Combat Criminal Threats
We Fight among the People
[Increasingly we conduct operations amongst the people. The people in the cities,
towns, streets and their houses — all the people, anywhere — can be on the battlefield.
Military engagements can take place against formed and recognizable groups of ene-
mies moving amongst civilians, against enemies disguised as civilians, and uninten-
tionally and intentionally against civilians. 9
The Fuerzas Armadas Revolucionarias de Colombia (FARC), the principal crimi-
nal terrorist group, and the other narco-trafficking groups generally do not possess
the capability to engage in conventional armed confrontations with Colombia's
military forces. Today, the armed and criminal groups move and act among the
people, obtaining benefits from a portion of the citizenry both voluntarily and
through extortion.
The brutality of the criminal terrorist groups is unquestioned. They are not sup-
ported by most of the population, but this does not necessarily result in support for
the government forces who act to protect the public. To the contrary, each mistake
or illegal or illegitimate act by a public official damages the people's confidence in
the government. 10 The cumulative consequence of these allegations of misconduct
is to turn public opinion against the government and those whose responsibility it
is to protect them. In effect, the protectors of society become the abusers of society.
Public opinion is turned against the government and law enforcement agencies
and military forces.
Because law enforcement agencies are often incapable of effectively addressing
the threat of the criminal terrorist groups, military forces are often called on to op-
erate in this new environment among the people. Military forces must redesign
their doctrine to confront the new threats. In today's war there is no victory, no ca-
pitulation by a defeated enemy. As Rupert Smith indicates, "[0]ur operations have
become increasingly timeless; they go on and on." 1 1 The use of military force alone
cannot eliminate the threat posed by these groups; it can only contribute positively
or negatively to the ultimate outcome. The illegal armed groups do not seek a mili-
tary victory; they are interested only in creating chaos and provoking overreaction
by military forces with the objective of causing a loss of support for the govern-
ment, thereby perpetuating never-ending conflicts.
The defeat of illegal and criminal armed gangs will not be accomplished
through military force. Rather, States must employ methods to dismantle them
that comply with the law and bring individual members to courts for prosecution.
This will require the cooperation of the citizenry of the country. To gain that
282
Juan Carlos Gomez
cooperation, the population can never be confused with the enemy and the crimi-
nals. If it is, the population will become the enemy.
Strategies must be developed to obtain the population's support for the State's
efforts to combat the criminal gangs. These strategies must be designed not just to
end citizens' complicity with the gangs. They must also end the belief that the pop-
ulation can be neutral in the conflict. What is required is a supportive and coopera-
tive population that assists national institutional authorities in their efforts. In
other words, an environment must be created in which each individual citizen feels
secure in denouncing the criminal gangs and assisting in the elimination of the
support structures for criminal activities. While military and police forces must
play an important role in establishing this environment, individual members of so-
ciety will also have a role to play.
A temporary presence of government forces is insufficient to establish this envi-
ronment. In areas that organized armed groups have controlled, the citizens will
not provide the necessary support if they believe police and military forces will
soon withdraw, thus allowing the criminal groups to return. As a result, the new
strategy must envision a permanent presence and an assurance to the population
that the government forces will be there as long as is necessary.
The use of military force is not always the best option to deal with the activities
of the illegal and criminal groups. If mistakes, either intentional or unintentional,
are made in attempts to neutralize the threat and innocent members of the popula-
tion become victims, this is exactly what criminal gangs desire. This delegitimizes
the State and its democratic institutions. If military force is necessary it must be
used carefully and in full compliance with the law. However, in many instances the
more appropriate response is law enforcement actions designed to arrest and pros-
ecute individual group members.
It has been observed that "the British Army was the Irish Republican Army's
best recruiter. By targeting Catholic civilians and arbitrarily arresting and killing
suspected I.R.A. members, the British angered many young men who turned to the
I.R.A. as their only hope for survival; it was also a way to get revenge." 12 This history
lesson is also important in the Colombian context. Noncompliance with the rule of
law can lead — and has led — some to join the FARC and other criminal groups; can
cause a delegitimization of the government, the armed forces and police; and can
result in an increase in the number of disciplinary and judicial cases against offi-
cials involved in unlawful acts.
New Missions for the Armed Forces
Colombia is not the only country in the Western Hemisphere that uses its military
forces within its borders in missions other than national defense of the nation.
283
The Use of Military Forces to Combat Criminal Threats
El Salvador's President Mauricio Funes, immediately upon assuming office in
2009, ordered military forces to participate in combating the mara salvatrucha
gang. 13 El Salvadoran military forces continue to be employed in that role. 14 In
Brazil, military forces contribute to the law enforcement efforts of the police
against the criminal and narco-traffic bands in the favelas. 15 The same use of mili-
tary forces can be observed in Mexico, where President Felipe Calderon in 2006 de-
clared "war against the narco-traffickers," a "war" engaged in by the federal police,
the army and the navy. 16 To a lesser degree, Guatemala, Paraguay and Peru are also
using their military forces to address security- related issues within their borders.
Adaptation to the New Operational Environment
As was indicated previously, criminal activity would ideally be dealt with exclu-
sively as a law enforcement matter that could be addressed by law enforcement
agencies. Unfortunately, the capabilities and economic capacity of the illegal
armed groups and the organized crime organizations are such that they are beyond
the ability of law enforcement agencies, acting alone, to address. In these circum-
stances, governments may legitimately call upon military forces to maintain social
order and address the threat created by these groups and organizations. Military
forces must adapt, however, to these new missions and operational environment if
they are going to effectively and efficiently neutralize the threats they have been
called on to address; failure to do so will result in loss of support from the govern-
ment and citizens.
Particularly over the last eight years, Colombian military forces and law en-
forcement agencies have been successful in reducing the threat posed by criminal
organizations and illegal armed groups. Several have been defeated, and the capa-
bilities of those that remain have been greatly reduced. In addition, the level of vio-
lence within the country has greatly decreased. In many areas, the threat has been
reduced to the point that military forces no longer need to be used in a traditional
military capacity. In those areas, criminal activity, including terrorist acts, can now
be dealt with as a law enforcement matter. The rule of law has been reestablished
and a security environment established where HRL — not IHL — is applied by mili-
tary forces performing law enforcement functions. In these areas, illegal armed
groups and criminal organizations do not control portions of the territory, al-
though they continue to operate within them. In response to pressure brought by
military forces and law enforcement agencies in these areas, the illegal armed
groups and criminal organizations simply move their areas of operations to less
controlled areas; this is what is known as the "bubble effect."
In those places in Colombia where the FARC still possesses a viable military ca-
pability, Colombian military forces employ the use of force in accordance with IHL
284
Juan Carlos Gomez
to combat it. Offensive operations, in the classic sense, remain an option in isolated
areas away from population centers. However, when operations are conducted
among the people, care must be taken in the application of force. Unnecessarily
causing harm to civilians or their property can create greater long-term issues than
the immediate military advantage gained. While IHL remains the governing law,
the use of force must be more restrictively applied as a last resort and should only
be used when necessary in legitimate defense of the military force and when there is
no other alternative to accomplish the assigned mission.
The criminal organizations now operating in Colombia, whose motives are eco-
nomic instead of political, are not interested in a negotiated settlement that would
provide them a place in the political process. While they speak of a desire to negoti-
ate, they do so only to obtain immediate benefits and perpetuate the conflict. They
look to intervention by churches, politicians, social leaders and international orga-
nizations weary of the long conflict. The criminal groups not only subsist among
the people; they use the population for their benefit.
The questions that must be answered are how military forces are to be used in a
role far different from their principal purpose of maintaining national security
against external threats, and how combating criminal activity can be successively
accomplished while at the same time retaining that most important attribute of na-
tional and international legitimacy.
Knowing the Threat
Knowing and understanding the type of threat to be confronted is of fundamental
importance. Real-time intelligence information on the criminal organization's ob-
jective, capabilities and membership is essential to formulating strategy and
courses of action.
Participation of Military Lawyers
The complexity of international and domestic law and the expectation in Western
democracies that the government and military forces will conduct themselves in
accordance with the law require that military lawyers be involved in all aspects of
military operations, from their planning and execution to post-execution evalua-
tion and analysis. 17 These military lawyers must havcthe knowledge and experi-
ence to be credible with the commanders they advise. The value of such
participation by military lawyers has been demonstrated in Colombia.
Rules for the Use of Force
There must be clear, understandable rules provided to military forces on the cir-
cumstances under which force may be used and the type and degree of that force.
285
The Use of Military Forces to Combat Criminal Threats
This is dependent on the mission assigned to the forces. In Colombia, two differ-
ently colored cards are used. A blue card is used when the military unit is engaged
in a law enforcement mission. The rules on the blue card are based on HRL. They
provide for the use of force only when no other option is available to accomplish
the mission and in self-defense of the person and others. The red card is used in op-
erations against military objectives. These cards are based on IHL and permit the
offensive use of force, including lethal force if demanded by military necessity.
Coordination with the Judicial Branch of Government
The military forces must coordinate their efforts with the judicial branch and the
federal police. In the case of Colombia, this is the Office of the Attorney General
and the National Police, and subordinate organizations. Each military operation
undertaken as a law enforcement mission is undertaken in conjunction with law
enforcement agencies so that effective criminal prosecutions can take place. These
normally occur in the new operating area among the people, where adherence to
HRL is critical.
Investigation of Allegations of Misconduct by Military Members and Public Officials
Allegations of criminal misconduct by law enforcement agents and members of the
military are inevitable when operating in the middle of the population. These must
be openly and effectively investigated. When allegations are substantiated criminal
prosecutions must be initiated. When investigations don't support the allegations,
the results must be publicly shared, including the factual details of the incident or
event in question. Thorough, complete and transparent investigations are neces-
sary to maintain public support. The worst strategy is government silence, which
permits the media and others to speculate or to tell their versions of what they be-
lieved happened.
Truth Is Paramount
Mistakes and errors have been made and will be made by military members and
law enforcement agents, even when actions are taken in good faith. When these oc-
cur, they must be truthfully revealed and explained. Too often, innocent mistakes
have been covered up with falsehoods. Actions taken in good faith but with unex-
pected results can be accepted; falsehoods and cover-ups cannot. 18 As with failures
to effectively investigate allegations of misconduct, falsehoods and cover-ups lead
to a loss of public support.
286
Juan Carlos Gomez
Institutional Loyalty
When a military member or law enforcement agent engages in criminal conduct,
the institution concerned, whether it is the armed forces or federal police, must
provide that individual the rights provided by domestic law, but must not be seen
as defending the conduct in question. Loyalty must be given to the institution as a
whole, not to the individual member. Regrettably, in Colombia there have been in-
stances when military members or law enforcement agents have used their position
of authority to commit crimes. When they go unpunished, there are political, legal
and economic costs to the government and institution concerned, and credibility
and public support suffer.
Tactical Operations Can Impact National Strategy
Throughout history, conflict has been analyzed at three levels: strategic, opera-
tional and tactical. The national strategic level involves development of national
policy and objectives, and the use of resources to accomplish those objectives. At
the operational level, campaigns and major operations are planned, conducted and
sustained to accomplish strategic objectives. At the tactical level, military missions
are planned and executed to accomplish military objectives. Today, those levels are
closer together than at any time in the past. Technological advances, social net-
works and an almost instantaneous communications capability allow what is oc-
curring at the tactical level to be made known literally around the world. Because
tactical situations can, and often do, have effects at the strategic level in terms of
public perceptions and opinion — both negative and positive — it is essential that
commanders at the strategic and operational levels be in communication with, and
in control of, military units operating at the tactical level. They must have the ca-
pacity to react and adapt to the circumstances as they occur on the ground.
Political and Judicial Concerns Arising from the New Operating Environment
The risk of legal action being taken against them is the greatest concern of military
members and law enforcement agents operating in the new environment. In Co-
lombia, the potential of criminal and disciplinary investigations being initiated has
reduced morale among members and agents. It has caused some to decide in cer-
mi
tain circumstances that it is safer not to act, as taking action might subject them to
an investigation. Another concern is that making allegations of criminal conduct
against public officials and administrative demands of the government is both
politically and financially profitable.
Beyond the impact on the individual who is the subject of the allegation, alle-
gations of misconduct damage the credibility of the government. When the
287
The Use of Military Forces to Combat Criminal Threats
allegations have a basis in fact, action to investigate and hold persons accountable
is required. Responses to false allegations must publicly identify the allegations as
false, and action must be taken against those who make such allegations when
they violate Colombian criminal law. Care must be taken in doing so, however;
nothing can damage the credibility and reputation of the institution concerned
more than to find an allegation is unsupported on the basis of an inadequate or
incomplete investigation when the allegation is, in fact, true. False allegations
must be vigorously refuted; a failure to do so is nearly the same as accepting the
allegation as true.
The inevitable result of the use of military force, whether in international or
non-international armed conflict, is that innocent persons will be killed and in-
jured and civilian property will be damaged and destroyed. When this occurs, the
government must be prepared to accept responsibility and compensate those who
suffered losses. To fail to do so harms morale among civilians and can turn them
into supporters of the armed groups combating the government.
In Colombia, there are both non-judicial and judicial processes to evaluate
claims for damages caused by military forces and to promptly provide adequate
compensation to those harmed. This not only has the benefit of promoting good-
will, but also reduces the likelihood that allegations of criminal misconduct will be
brought against the military members causing the harm.
Final Reflections
Nairn, in his "The Five Wars of Globalization" article, concludes:
These five wars stretch and even render obsolete many of the existing institutions, legal
frameworks, military doctrines and law enforcement techniques on which gov-
ernments have relied for years. Analysts need to rethink the concept of war "fronts"
defined by geography and the definition of "combatants" according to the Geneva
Convention. The functions of intelligence agents, soldiers, police officers, or immigra-
tion officers need rethinking and adaption to the new realities. 19
Facing the reality that threats to national security today are more likely to arise
from within rather than from outside, as Nairn suggested in 2003, governments,
including that of Colombia, have rethought how to employ their military forces to
confront these new threats. Colombia's experience has demonstrated that while
military forces can be used lawfully in the fight against these internal threats to
security and democratic stability, they must adopt new strategies and doctrine to
effectively combat these threats that are largely centered in the population. A
288
Juan Carlos Gomez
failure to do so has the potential to more severely damage the State — and State in-
stitutions — than does the threat against which military forces are employed.
If military forces are used in a law enforcement capacity to deal with criminal
conduct, the law that governs will be HRL. It requires more restrained use of force
than is provided under IHL. While military forces can operate effectively under
both regimes, the Colombian experience demonstrates that it is essential that mili-
tary forces understand the law under which they are operating on missions to
which they are assigned. Misapprehension of the legal regime can result in exces-
sive use of force, increased risk to military personnel and mission failure.
Democratic societies in the twenty- first century enjoy the benefits and freedoms
provided by HRL, and demand that their governments provide them the rights and
guarantees set forth in the various human rights instruments. Colombia is no
exception. The Colombian population appreciates the threat posed by the criminal
gangs, but expects that the government's response and the actions of law enforce-
ment organizations and military forces will be fully consistent with that law. It will
not tolerate excesses.
The privilege to govern and have the monopoly on the lawful use of force within
a society obligates those who have that privilege to use force in full compliance with
the law, whether it be HRL or IHL, and to adhere to the highest ethical and moral
values. The wind has blown and societies have changed. Now governments must
adjust their sails and respond to internal threats within the framework of the law;
their societies expect nothing less.
Notes
1. Jimmy Dean, LIFE QUOTES, http://www.sanjuan.edu/webpages/bgrueneberger/files/
Senior%20Grad%20Speech%20Life%20Quotes.pdf (last visited Apr. 10, 2012).
2. Moises Nairn, The Five Wars of Globalization, FOREIGN POLICY, Jan.-Feb. 2003, at 29, 29.
3. See, e.g., Steven W. Casteel, Assistant Administrator for Intelligence, U.S. Drug Enforce-
ment Administration, Statement before the Senate Committee on the Judiciary: Narco-Terrorism:
International Drug Trafficking and Terrorism — a Dangerous Mix (May 20, 2003), available at
http://www.justice.gov/dea/ongoing/narco-terrorism_story052003.html ("Globalization has
dramatically changed the face of both legitimate and illegitimate enterprise. Criminals, by ex-
ploiting advances in technology, finance, communications, and transportation in pursuit of
their illegal endeavors, have become criminal entrepreneurs. Perjaaps the most alarming aspect
of this 'entrepreneurial' style of crime is the intricate manner in which drugs and terrorism may
be intermingled. Not only is the proliferation of illegal drugs perceived as a danger, but the pro-
ceeds from the sale of drugs provides a ready source of funding for other criminal activities, in-
cluding terrorism.")
4. Rupert Smith, The Utility of Force: The art of War in the Modern World 5
(2006) ("It is now time to recognize that a paradigm shift in war has undoubtedly occurred: from
armies with comparable forces doing battle on a field to strategic confrontation between a range
289
The Use of Military Forces to Combat Criminal Threats
of combatants, not all of which are armies, and using different types of weapons, often impro-
vised. The old paradigm was that of interstate industrial war. The new one is the paradigm of war
amongst the people . . . .").
5. Human rights law is found in both customary international law and treaty law. See, e.g.,
Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen.
mtg., U.N. Doc. A/810 (Dec. 10, 1948); International Covenant on Civil and Political Rights arts.
4, 8, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171; American
Convention on Human Rights, Nov. 22, 1969, 1 144 U.N.T.S. 123.
6. As with human rights law, international humanitarian law is found in both customary
and treaty law. See, e.g., Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 31 14, 75 U.N.T.S. 31; Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treat-
ment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to
the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
Of particular relevance in each of these Conventions to the internal (or non-international) con-
flict in Colombia is what is referred to as "Common Article 3." The provisions of that article ap-
ply "in the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties."
Other treaties applicable in internal conflict include the Convention on Prohibitions or Re-
strictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Exces-
sively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137, reprinted in
19 INTERNATIONAL LEGAL MATERIALS 1523 (1980). Amended Article 1 to the Convention made
all of its protocols applicable in internal conflicts. See also Convention on the Prohibition of the
Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction,
Sept. 18, 1997, 2056 U.N.T.S. 211, reprinted in 36 INTERNATIONAL LEGAL MATERIALS 1507
(1997); Convention on Cluster Munitions, Dec. 3, 2008, 48 INTERNATIONAL LEGAL MATERIALS
357 (2008). See also CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2 volumes: Vol. I,
Rules; Vol. II, Practice (2 Parts)) (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005).
7. Casteel, supra note 3 (stating that three terrorist organizations in Colombia, all with links
to the drug trade, were responsible for about 3,500 murders in 2002).
8. Under the Colombian constitutional scheme, the "Military Force" is composed of the
Army, Navy and Air Force and what is referred to as the "Public Force" includes the three mili-
tary services and the National Police.
9. SMITH, supra note 4, at 281 (Smith describes war among the people as being the domi-
nant form of war since the end of the Cold War).
10. In a January 201 1 interview with former President Alvaro Uribe, he emphasized to the
author the importance of dismantling the criminal groups through lawful actions, using the
courts for prosecutions whenever possible.
1 1 . SMITH, supra note 4, at 29 1 .
12. Central Intelligence Assassins, THE TEMPLE NEWS (Nov. 14, 2002), http://temple-news
.com/2002/1 1/14/central-intelligence-assassins/.
1 3. Maras is the term used to label the El Salvadoran youth gangs. The mara salvatrucha orig-
inated in Los Angeles in the 1980s when young El Salvadoran immigrants, armed with machetes,
guns and guerrilla combat training gained during El Salvador's civil war, united and became one
of the city's most violent gangs. Using the expedited removal procedures of the Immigration and
Nationality Act resulted in large numbers of gang members being deported to El Salvador
throughout the 1990s, where they continued their gang activities. El Salvadoran youth, already
290
Juan Carlos Gomez
desensitized to violence by the civil war, were easy recruits. One author commented, "For all in-
tents and purposes, deportation from the United States merely provided MS- 13 [mara
salvatrucha] with an effective means for transnational expansion — an expansion that would al-
low the gang to become more organized, powerful, and violent." Kelly Padgett Lineberger, The
United States-El Salvador Extradition Treaty: A Dated Obstacle in the Transnational War Against
Mara Salvatrucha (MS- 1 3), 44 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1 87, 1 94 ( 20 1 1 ) .
14. Alex Renderos, Salvadoran Leader Names Newly Retired General to Top Police Post; The
Selection Comes after a Similar Security Appointment, and Stirs Fear of Militarization., LOS
ANGELES TIMES, Jan. 26, 2012, at A3.
15. See, e.g. , Open for Business: The Pacification of Brazil's Favelas, KNOWLEDGE WHARTON,
Jan. 3, 2012, http://knowledge.wharton.upenn.edu/article.cfm?articleid=2910.
16. Stephen Sackur, "No alternative" to Mexico's drug war — says Calderon, BBC, Oct. 27,
20 1 0, http://news.bbc.co.Uk/2/hi/programmes/hardtalk/9 1 30 1 55.stm.
17. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts art. 82, June 8, 1977, 1 125 U.N.T.S. 3
("[States] . . . shall ensure that legal advisers are available to advise military commanders at the
appropriate level on the application of the [Geneva] Conventions and this Protocol . . . ."). The
Colombian Air Force incorporated military lawyers into the planning and execution process in
2001; the other services followed suit. Their participation occurs on a daily basis.
18. During the period of his presidency, Alvaro Uribe stated, "History can forgive an error,
but never the lies or half-truths."
19. Nairn, supra note 2, at 36.
291
XIV
An Australian Perspective on Non-
International Armed Conflict:
Afghanistan and East Timor
Rob McLaughlin*
Introduction
Over the course of the last three decades, Australia has committed forces to a
wide range of operations that have, collectively, involved the Australian
Defence Force (ADF) in its most sustained period of high operational tempo since
the Vietnam War. The operations include the first Gulf War, in 1990-91, and the
second Gulf War, in 2003 (both international armed conflicts (IACs)); belligerent
participation in non-international armed conflicts (NIACs) in Iraq post-2003 and
Afghanistan (at least since 2005); and participation in a range of peace operations
of widely varied political, physical and legal risk, including transitional administra-
tions in Cambodia and East Timor, sanctions enforcement in the North Arabian
Gulf, and stabilization and mitigation operations in Somalia, Rwanda, East Timor,
Bougainville and the Solomon Islands. As each operation has unfolded, Australia
has learned (or in some cases, relearned) both practical and theoretical lessons
in operational law. In many cases, these lessons have been identified and
contextualized within a relatively defined (albeit fluid) operational legal paradigm
* Associate Professor of Law, Australian National University; Captain, Royal Australian Navy.
The views expressed in this article are my own and should not necessarily be attributed to the
Royal Australian Navy, Australian Defence Force or government of Australia.
An Australian Perspective on Non-International Armed Conflict
in that experience with I AC, and non-law of armed conflict (LOAC)-governed
peace operations, has tended to be relatively linear and coherently incremental.
With NIACs, however, the trajectory has not always been as logical or smooth. I
believe that there are three reasons for this differing path. I shall not examine them
in any detail, but it is nevertheless useful to set them out up front for they provide a
contextual backdrop to the focus of this study. First, as opposed to I AC and peace
operations generally, there was — and remains — much less clarity about what law
applies in NIAC. Ongoing debates as to the application of human rights law in
armed conflict (which are almost universally conducted by reference to NIAC-
based examples) 1 and the lively and contentious discussion surrounding the appli-
cation of IAC blockade law to what some characterize as a NIAC situation between
Israel and Hamas in the Gaza Strip 2 are but two examples that illustrate this
point. 3 Indeed the fundamental task of distinguishing the NIAC threshold from its
"upper" and "lower" neighbor legal paradigms (IAC and less-than-NIAC law en-
forcement in situations of civil disturbance) similarly remains a highly contested
and politically laden debate. There is little doubt that the relative "scarcity" and
"opacity" of NIAC LOAC is one reason why NIAC LOAC is the primary battle-
ground in the current push to harmonize IAC and NIAC LOAC by asserting that
most (if not all) of the IAC rules are equally applicable in NIAC, and to humanize
LOAC by reinterpreting its scope of application and the substance of many of its
constituent concepts in the light of human rights law. The result is that NIAC
LOAC is being squeezed between (or indeed, colonized by) its better defined and
more fully enumerated paradigmatic neighbors, which in turn creates the percep-
tion — if not the actuality — of greater fluidity and indeterminacy than in other ele-
ments of operations law.
The second reason, which emanates from the first, is that the existence of a
NIAC remains a highly political assessment, whereas the existence of an IAC is gen-
erally (or at least relatively when compared to NIAC) easy to establish with a degree
of logic and certainty. This is most evident at the lower NIAC threshold, between
non-NIAC situations of civil disturbance and NIAC itself. The very large space for
political influence in a NIAC characterization decision (much larger than in the
equivalent IAC conflict characterization space) has meant that in addition to the
application of NIAC LOAC being dogged by a higher degree of substantive uncer-
tainty and opacity than either IAC LOAC or peace operations law, it has also re-
mained a much more politically nuanced and contested body of law at even the
initial point of characterization. Perhaps the most striking illustration is the long
British reluctance to characterize "the Troubles" in Northern Ireland as anything
other than a less-than-NIAC law enforcement situation. 4
294
Rob McLaughlin
The third reason — certainly evident, in my view, in Australian practice, but
common across many partner operating States — is that when Australia has com-
mitted forces to IAC situations, it has almost universally been as a belligerent: Iraq/
Kuwait, 1990-91; Afghanistan, 2001; Iraq, 2003. However, when Australia has
committed forces into NIAC situations, it has almost universally been as a non-
belligerent stabilization or mitigation force. There was clearly a NIAC under way in
Somalia in 1992, but Australia's force was not a party to it; rather, it was part of a
stabilization/mitigation mission and did not exercise the full suite of LOAC powers
that would have been available to it, dejure, if it had been a party to the NIAC. Ac-
cordingly, the force was authorized to use lethal force in self-defense, but not to
conduct lethal targeting operations under the auspices of LOAC. 5 In Cambodia
and Rwanda it was similarly so. In East Timor, although there is debate as to
whether there was a NIAC (or even an IAC) afoot in 1999-2001, Australian forces
were not a party to any armed conflict and thus could not avail themselves of the
sharper end of LOAC authorizations dejure. Thus, until Australia substantially re-
engaged in Afghanistan in 2005 as a belligerent party in what was by then clearly a
NIAC, Australia had to some extent been able to bypass the complexities of NIAC
LOAC. While the ADF often deployed into NIAC contexts, those forces were not
parties to the NIAC and operated under the "routine" peace operations legal
paradigm.
Aim
My aim in this short study is to ask how, from a legal perspective, Australia has ap-
proached the issue of "NIAC." I will seek to achieve this by examining four discrete
issues: conflict characterization, characterization of the opposing force, rules of en-
gagement (ROE) and treatment of captured/detained personnel. The methodol-
ogy I have adopted is to examine each of these issues through a broadly
comparative prism — a comparison between a high-level non-NIAC operation
(East Timor, 1999-2001) and a NIAC operation (Afghanistan, ongoing since
2005). The purpose behind adopting this methodology is to provide a framework
for establishing an alternative against which NIAC practice can be compared. It
also provides a means of illustrating the degree to whrch this practice is either
consistent or different across the lower threshold of NIAC, that is, between less-than-
NIAC "peace" operations (law enforcement operations or stabilization/mitigation
operations), and NIAC operations themselves. The reasons Australia has taken dif-
ferent characterization paths, and the consequences of these choices, are, I believe,
central to understanding any "Australian approach to NIAC." My underlying
premise, as will quickly become evident, is that any legal understanding of NIAC
295
An Australian Perspective on Non-International Armed Conflict
and of the threshold between NIAC and less than NI AC is beholden to non-legal
influences to a much greater degree than in clear law enforcement or clear IAC
contexts.
Characterization of the Conflict: Afghanistan vs. East Timor
Characterization of the conflict situation is fundamental to Australia's approach to
almost every other element of operational authority. Although this issue is less sig-
nificant for some other States, the choice to characterize a conflict as a NIAC or as
"law enforcement," or to characterize Australian involvement in a NIAC as bellig-
erency or as law enforcement or stabilization/mitigation partnership, results in a
vital use-of- force caveat for the ADF. This caveat is, in essence, that where Australia
is not a belligerent party to an armed conflict, Australian forces cannot (in general)
use lethal force in circumstances other than in individual and unit self-defense
(usually including defense of others). Furthermore, use of force where the Austra-
lian force is not a belligerent is governed entirely by the "routine" elements of Aus-
tralian domestic criminal law. 6 There is, consequently, no legally available option
for Australian forces to access any of the lethal LOAC authorizations when Austra-
lia is not a belligerent party to the NIAC. When Australia is a belligerent party to
the NIAC, and lethal force is used in alleged accordance with NIAC LOAC (for ex-
ample, to target a fighter member of an organized armed group (OAG)), then the
applicable law shifts, and brings into play Division 268 of the Commonwealth
Criminal Code (which domesticates the 1998 Rome Statute of the International
Criminal Court offenses into Australian law). 7
Afghanistan, at least since Australian forces re-engaged militarily in 2005, is a
NIAC and Australia is clearly a belligerent party to that NIAC. East Timor in 1999-
2001 was, however, consciously characterized as a "law enforcement" or stabiliza-
tion operation, even though the issue of characterization as a NIAC (or IAC) was
considered. What may have influenced these two legal/policy characterization de-
cisions along very different paths? Certainly, the "facts on the ground" were not
radically different when rationalized against a relative scale. The Afghanistan con-
text is current and well known and requires little recap; however, it is perhaps
worthwhile briefly reviewing, for comparative purposes, the less current East
Timor context. In relation to intensity, there were/are proportionally high casualty
rates in both conflict contexts. In East Timor, tens (by some counts hundreds) of
thousands had died under Indonesian occupation, and the consequent insurgency,
since 1975. 8 At the point of intervention in 1999, there were wide-scale destruction
of infrastructure and massive displacement of the population. On September 20,
1999, as the United Nations Security Council-sanctioned International Force East
296
Rob McLaughlin
Timor (INTERFET) commenced deployment, few buildings in Dili were undam-
aged and all but three of East Timor's main population centers had been either
completely destroyed (two towns) or 70 percent burnt down or leveled (four
towns). 9 Population displacement was on a massive scale: as recorded subsequently
in an ADF "lessons learnt" study: "A preliminary UN inter-agency assessment of
the situation issued on 27 September 1999 estimated that of a total pre-ballot pop-
ulation of 890,000, over 500,000 had been displaced by violence, including 150,000
to West Timor [Indonesian territory]." 10
In terms of organization, in East Timor there were legacy militias and insur-
gency groupings (which had been fighting Indonesian occupation since 1975), as
well as newer militias of both pro-integrationist and independence sympathies.
The political context was complicated by external actors (such as Portugal (the for-
mer colonial power), Australia, Indonesia and the UN) and militia sponsors (in-
cluding, it now seems well established, elements within the Indonesian military).
The comparison with Afghanistan's political and conflict situation (complicated
by the engagement of Pakistan, United States, NATO, UN, and warlord, trans-border
militia, and transnational terrorist group interests) is — when scaled — readily evi-
dent. The situation in East Timor 1999-2001 could arguably be said to have met
both the Tadic "intensity of the conflict and organization of the parties to the con-
flict" elements 11 as readily as the situation in Afghanistan currently does.
However, despite such contextual similarities in terms of the "facts on the
ground" of which LOAC takes cognizance, the strategic contexts in which the East
Timor and Afghanistan conflict characterization decisions were made were radi-
cally different. This clearly played into the fundamentally different characteriza-
tion decisions Australia arrived at in relation to these two conflict contexts. In
Afghanistan, the "other" was the unloved Taliban and its widely detested partner
Al Qaeda — both routinely described through militarized rhetoric emphasizing or-
ganization, capacity, universal aims, threat level and reach. As Australia's then
Prime Minister, John Howard, said of the attacks of September 11, 2001 and those
who sponsored and sheltered the perpetrators:
[I]t is the product of evil minds and it is the product of an attitude of a group of people
who in every sense [e]voke those very evocative words of Winston Churchill when he
said that those responsible for the Nazi occupation of Europe should be regarded in
their brutish hour of triumph as the moral outcasts of mankind. 12
In announcing the deployment of forces to Afghanistan, Prime Minister
Howard was explicit as to the readily condemnable nature of the "other": "Well we
certainly don't have any concern about being involved in action against those
297
An Australian Perspective on Non-International Armed Conflict
people who were responsible for the terrorist attack." 13 Indeed, Australia had by
this stage invoked the ANZUS Treaty, 14 indicating that the Afghanistan conflict
context had been informed by a significant legal act which was more armed conflict
focused than not. 15 This militarized (as opposed to law enforcement terminology
based) characterization of the conflict remains the case. As Minister for Defence
Stephen Smith observed in March 201 1, M [o]ur fundamental goal is to prevent Af-
ghanistan from again being used by terrorists to plan and train for attacks on inno-
cent civilians, including Australians in our own region and beyond." 16
Thus in relation to Afghanistan, defining the context as a NIAC and engaging as
a belligerent within it heralded few prospects of causing a damaging rift with an im-
portant neighbor or influential member of the international community, or of
subscribing to a highly legally contested or politically risky characterization of the
"other." In many ways, there was little political or strategic risk to balance against
the political and strategic gain of characterizing the situation as a NIAC and of Aus-
tralian engagement within it being as a belligerent party.
But the strategic context in which the East Timor conflict characterization deci-
sion was made was very different indeed. Certainly, if one looks only to the "facts
on the ground" there had been a NIAC (or IAC?) during the period of Indonesian
occupation. It may even have been an Additional Protocol I Article 1(4) conflict. 17
But for Australia, this was a difficult issue: Australia was one of the few States that
had recognized the Indonesian annexation. 18 Even when the conflict morphed in
1999-2001 into something like a NIAC with integrationist militia as the "other,"
the conflict characterization settled upon appears to have been that there was no
NIAC afoot. During INTERFET (an Australian-commanded "green helmet"
force), Australia certainly had greater "national" scope to characterize the conflict
as a NIAC than in the later UN Transitional Administration in East Timor
(UNTAET) "blue helmet" period, but chose not to do so. This decision was main-
tained even as INTERFET deployed ashore in Dili, where the pro-integrationist
militias were burning, looting, killing and terrorizing, and were doing so with the
tacit support, if not backing, of some members of the Indonesian military. 19
These militias were certainly potentially characterizable as an organized armed
group in a NIAC context if we apply our Afghanistan-based conception of "orga-
nized armed group." But in 1999, the recent (and ongoing) "civilians taking a di-
rect part in hostilities" debate was in the future; thus the assessment was made
against the slim — and relatively unnuanced — black letter law criteria recognizable
in Additional Protocol I, Additional Protocol II 20 and Common Article 3 to the
1949 Geneva Conventions, 21 and their associated commentaries.
But there were also other vital factors that militated against such characteriza-
tion. The first was the fact that INTERFET was present in East Timor partly on the
298
Rob McLaughlin
basis of an Indonesian invitation. 22 The second was that security was envisaged to
be a combined INTERFET/Indonesian responsibility during the transition phase,
thus requiring INTERFET to cooperate with Indonesian forces until they with-
drew (although in reality this did not turn out to be a long phase, as Indonesian
forces rapidly departed). Finally, regardless of whether there was a NIAC afoot, the
Security Council and Australia (as the lead troop-contributing nation (TCN) for
INTERFET, and also furnishing its commander) consciously determined that the
UN-sanctioned force was not involved in a NIAC. This was not a universal view.
The International Committee of the Red Cross (ICRC) had indicated to Australia
that "militia members detained for acts of violence against INTERFET members
were entitled to prisoner of war status. The ICRC's reasoning was that if it were ac-
cepted that the militia were at least controlled by the Indonesian armed forces then
clashes between militia and INTERFET would constitute armed conflict." 23
The Australian view was that LOAC did not apply dejure, and the situation was
one of law enforcement/stabilization. Thus even if the Fourth Geneva Convention
(GC IV) 24 was used as a template for managing the situation, this was clearly con-
templated as resting upon a policy basis, for quite apart from whether the situation
was even an armed conflict at all, GC IV of course applies de jure to IACs, not
NIACs. However, one revealing element in this decision-making process is in-
structive as to the sorts of concerns that can inform conflict characterization deci-
sions at the lower threshold (that is, NIAC, or less-than-NIAC law enforcement/
stabilization) in that the issue of reciprocity was clearly in mind. For some of those
analyzing the context there was certainly a concern that if Australia found that GC
IV applied dejure, it may "have the legal consequence either of rendering ADF
personnel 'lawful' targets, making Australia party to any conflict, or bringing into
effect the other Geneva Conventions of 1949." 25 Ultimately, the settled view taken
was that
the Convention [GC IV] would not make Australian troops a party to a conflict who
could then be targeted "as of right by other parties to the conflict. . . ." If the Fourth
Convention applied and armed elements attacked Australian troops this would be
illegal unless it was part of an organised armed force with a responsible command
structure. 26
Clearly, the reciprocity issue — that is, if the East Timor context had been charac-
terized as a NIAC (or IAC) it would have raised the specter of the UN-sanctioned
force being subject to legitimate LOAC targeting — was an overt concern, and thus
a factor which played into the conflict characterization decision with respect to
East Timor.
299
An Australian Perspective on Non-International Armed Conflict
Characterization of the Opposing Force
In many ways, the "legal" characterization given to the "other" (the adversary) in a
conflict situation (be it NIAC or less than NIAC) necessarily follows from the
broader conflict characterization decision. However, it is nevertheless worth ob-
serving that — arguably, in Australian experience at least — the legal characteriza-
tion accorded this "other" has two major implications for operations. The first is
defining the line in NIAC between targetable fighter activity and merely criminal
activity, given that all violent action by an OAG in a NIAC is fundamentally
characterizable as criminal activity ab initio. This is an issue that does not arise
when the overall conflict characterization is less-than-NIAC status, thus requiring
that all "militia" or "armed gang" violence be met with a law enforcement, as op-
posed to a LOAC-based, response. The second implication concerns the rhetorical
treatment of the "other." This factor, while not strictly legal, requires brief exami-
nation as it appears to reflect a fundamentally political/legal appreciation of the sit-
uation, as opposed to one based purely in "the facts on the ground."
Organized Armed Groups in Non-International Armed Conflict
This study is not the venue for revisiting the battlelines in the ongoing debate on
direct participation in hostilities and the ICRC's Interpretive Guidance. 27 It is suffi-
cient for our purposes to simply recall that the argument is, in essence, about what
activity and which actors are within the targetable envelope (in the LOAC sense of
authorization to proactively seek out and kill without having to limit lethal force to
situations of self-defense), and what and who are outside that envelope for LOAC
purposes. It is therefore sufficient to simply note that a fundamental point of
divergence centers around what constitutes an OAG, and, more importantly,
what activity/which actors associated with that OAG are targetable in the LOAC
sense. The directly relevant question, however, is whether this heralds any signifi-
cant operational implications.
In Afghanistan, where Australia considers itself to be a belligerent party to a
NIAC, the main "other" is defined in terms of an OAG. This characterization, how-
ever, is not a simple matter, and as is the case for many States engaged in Afghani-
stan (and previously Iraq), this concept of OAG has actually evolved as an applied
operational and ROE concept in tandem with its evolution as a legal concept. As a
consequence, there was a period of working through and settling the parameters of
the concept in terms of TCN law and policy at the very time it was also being used
to support lethal effects in the field. This evolution of a critical legal and opera-
tional concept for NIAC, through the crucible of current operations, has not been
without problems. The foremost of these has been that while Australia has been
300
Rob McLaughlin
working out what it means when it refers to an OAG, other States have also been
doing this and conclusions do differ.
Two examples may serve to illustrate this conundrum. The first is the furor that
erupted within the International Security Assistance Force (ISAF) over "targeting
drug barons," a debate that is readily traced through the newspapers of many ISAF
TCNs. As the New York Times reported:
United States military commanders have told Congress that they are convinced that
the policy is legal under the military's rules of engagement and international law. They
also said the move is an essential part of their new plan to disrupt the flow of drug
money that is helping finance the Taliban insurgency. . . .
The Senate report's disclosure of a hit list for drug traffickers may lead to criticism in
the United States over the expansion of the military's mission, and NATO allies have
already raised questions about the strategy of killing individuals who are not traditional
military targets. 28
This policy shift caused significant concern among a number of ISAF partner
TCNs. As reported in the UK newspaper The Guardian,
Previous missions have been held up by Nato lawyers arguing over whether an op-
eration was primarily a counter-narcotics/policing mission or a counter-terrorism/
military mission. European allies have strongly resisted the push to using military assets
for counter-narcotics missions.
The new American policy is the outcome of heated debates between the US and many
of its European allies in Afghanistan who have long viewed the country's booming
narcotics industry as a policing problem, not a military one. 29
The Canadian view, expressing the compromise that ultimately appears to have
been reached in the policy debate, was reported to be as follows:
Some commanders opposed targeting the drug trade because it is^against international
law to use military force against civilian targets — even if they are criminals.
NATO secretary general Jaap de [Hoop] Scheffer says the debate is over and there is full
agreement within the alliance to go after Afghanistan's illegal drug industry.
Mr MacKay says Canadian troops will attack drug lords and opium traffickers where
there is proof of a direct link to the Taliban insurgency. 30
301
An Australian Perspective on Non-International Armed Conflict
This formulation of the test as being "proof of a direct link to the Taliban insur-
gency" still allowed for different national interpretations as to what "legal ap-
proach" would be utilized by each individual TCN (law enforcement or LOAC-
based targeting). It also explicitly recognized that individual TCNs will employ a
variety of criteria (on occasion inconsistent as between those TCNs) for establish-
ing the nexus required to bring drug trafficking (a criminal activity) within the
OAG targetable envelope (a LOAC concern). This is generally achieved, it appears,
via the legal paths of personal linkages to fighter OAG roles, or the adequacy and
directness of the linkage between financing activities and fighting activities. The
Canadian formulation of the legal position is thus indicative of the routine need to
utilize a degree of constructive ambiguity when publicizing the resolution to con-
tentious legal/policy debates in the context of multinational operations — that is,
the words used to explain the resolution must still permit of individual TCN inter-
pretive wriggle room.
The second example relates to the attachment of military members from one
TCN to units from another TCN, where those two States may adopt slightly differ-
ent views on what and who is within — and without — the OAG targetable envelope.
For example, when Australia sent Gunners to join a UK artillery regiment on de-
ployment to Afghanistan, 31 it was vital that Australia and the United Kingdom
looked very closely at each other's concept of OAG. The legal risk inherent in any
such attachment, while remote, is nevertheless present. If, for example, the at-
tached (fully briefed) Australian Gunners under UK command engaged a target
who was within the targetable OAG envelope under the UK approach (and thus a
completely legitimate target for the UK), but outside the targetable OAG envelope
under the Australian approach (and thus perhaps not a legitimate military target
under the Australian interpretation), then the Gunners may have opened the door
to claims that they stood in legal danger under Australian law. Such risks are often
easily mitigated through briefings, caveats, and operational command and control
arrangements, but when the risk is linked to a fluid and highly contested legal con-
cept — such as the legitimate envelope of targetable activities and members within
OAGs in NIAC — risk mitigation becomes significantly more difficult. In such a
case, the first step is to identify the very possibility of different interpretations. The
next step is to identify whether those interpretive differences actually herald any
substantive differences in what/ who maybe targeted. For the sake of a clear appre-
ciation of potential TCN domestic legal consequences, this step in operational legal
risk management should never be glossed over.
In Afghanistan, the characterization of the "other" as an OAG in the LOAC sense
is intimately reflected in the rhetoric employed to describe that "other." The Taliban/
Al Qaeda adversary is described as a determined, capable, organized military foe,
302
Rob McLaughlin
and the campaign as punctuated by "fighting seasons." In March 201 1, the Austra-
lian Minister for Defence, for example, indicated that
[tjhere are signs that the international community's recent troop surge, combined now
with a strong military and political strategy, has reversed the Taliban's momentum.
This progress is incremental and hard-won, but it is apparent. . . .
But I do urge caution. United States Defense Intelligence Agency head, General Ron
Burgess, has cautioned that "the security situation remains fragile and heavily dependent
on ISAF support" and that the Taliban "remains resilient and will be able to threaten
US and international goals in Afghanistan through 201 1."
We must expect pushback from the Taliban, particularly in areas recently claimed by
ISAF and Afghan troops, when this year's fighting season commences in April or May.
We do need to steel ourselves for a tough fighting season. 32
The rhetoric and concepts associated with a military, as opposed to merely criminal,
adversary are well evident: planning, campaigns, the holding of territory, the high
level of security threat, coordination, political purpose and so on. In this way,
the political/legal rhetoric used to describe the "other" is clearly and funda-
mentally beholden to the earlier decisions to characterize the conflict as a
NIAC, to characterize Australia's involvement in that NIAC as that of a belliger-
ent party and to consequently describe the "other" — the adversary in the
NIAC — in terms of an OAG.
"Criminal Gangs" in Less-Than-NIAC Situations
In East Timor, the decision to operate in a "law enforcement" mode, and to avoid
characterizing the conflict as a NIAC (or, if a NIAC was afoot, then to characterize
Australia as a non-party to it) predetermined the characterization decision as to the
"other." As there was no NIAC for INTERFET, there was no targetable "other" in
the LOAC sense. Thus the "other" was legally characterizable as a simple criminal,
with none of the complications inherent in the LOAC concept of OAG at play. This
simplifies the legal regime applicable to dealing with this "other" in that because
they are mere criminals, and there is no scope for the application of LOAC
targeting authorizations, each criminal and each act of criminal violence can only
be dealt with in the law enforcement context of detention, arrest, search and seizure,
and use of lethal force only in self-defense. This political/legal decision as to con-
flict characterization, and its consequent characterization of the "other," thus re-
quires that this adversary is described in terms of criminality, that is, not in de facto
military terms. During the height of the crisis in East Timor, for example, one
303
An Australian Perspective on Non-International Armed Conflict
member of the Australian Parliament indicated that "we know what has happened,
according to newspaper reports, because of the open communications that took
place between elements of the Indonesian military and some of their militia thugs
in East Timor." 33 Similarly, the then Australian Foreign Minister was adamant that
'[t]he United Nations, Australia and the international community as a whole will
not, of course, be bullied by thugs. We will not be bullied out of this United Na-
tions process and we will not be bullied into abandoning the United Nations super-
vised ballot in East Timor." 34
He went on to affirm that
I think it is fair to say that the international community, on balance, thought that the
situation would be pretty bad after the announcement of the result, but I do not think
the international community quite expected — and Kofi Annan has made this point in
the last week or two — the rampant destruction that took place during that period. I do
not think the international community, in the end, concluded that people could ever
behave that badly. 35
He continued, "[W]e hope in any case, with the insertion of the multinational force
and with the move towards the United Nations taking over control of East Timor,
that we will see the rather rapid dissolution of the militias." 36
The rhetoric of "pure" criminality — thuggery, bad behavior, transience, private
ends, lack of coordination, cowardice in the face of a concerted police and military
response — is clearly evident, as is the complete absence of any militarized rhetoric
in describing this adversary.
Rules of Engagement Issues
The fact that East Timor was characterized as a less-than-NIAC law enforcement
and stabilization context, whereas Afghanistan is a NIAC, obviously held signifi-
cant consequences for ROE. Each characterization decision, however, brings with
it a series of unique complications that must be reflected in ROE.
For Afghanistan, ROE are clearly LOAC based and authorize the proactive target-
ing of certain individuals with lethal force, not being limited to self-defense. This is
complicated, however, by the fact that LOAC lends itself to a broad range of inter-
pretive differences between States — much more so than the core legal elements of
less-than-NIAC law enforcement and stabilization/mitigation operations. It also
necessitates that a whole range of LOAC rules that are applicable only on a patch-
work basis (such as those relating to anti-personnel land mines, cluster munitions,
304
Rob McLaughlin
riot control agents, explosive remnants of war, etc.) need to be managed and de-
conflicted among multiple operational partners. In law enforcement-based opera-
tions, most of these LOAC elements are not applicable dejure; thus the complexity
of managing this patchwork of obligations is to some degree mitigated.
A brief examination of four peculiarly NIAC-related ROE issues that Australia
has faced in this context may serve to illustrate this situation. First, as noted
previously, the issue of applying — through ROE — concurrently evolving law
with respect to determining (as a national legal position) who is within and who is
outside the OAG targetable envelope is problematic. This holds direct implica-
tions — and potential criminal consequences — for each TCN's forces when con-
ducting combined operations, or while on attachments with units from other
TCNs — such as the Australian Gunners deployed with UK artillery regiments or
Australian staff officers deployed into U.S. -commanded/controlled combined air
operations centers. 37
Second, one complication of the fact that Australia has characterized the conflict
in Afghanistan as a NIAC and Australia as a belligerent party to that NIAC is that
Australian ROE had to be drafted with a close eye on the equivalent belligerency-
based NATO ROE. This creates a need to explain, "nationalize" and de-conflict
some critical items of terminology. One of the more significant is that NATO ROE
use the concepts of "hostile act" and "hostile intent" in a radically different way
from Australian ROE doctrine and practice. In NATO ROE doctrine, these con-
cepts can be used as components of LOAC-based attack rules, 38 for example, to cre-
ate ROE that require restraint from attack (in situations where, under LOAC,
attack would be lawful) unless the adversary force demonstrates hostile intent to-
ward an own-force element (such as positioning to attack it) or carries out a hostile
act against an own-force element (such as attacking it). An example of this form of
NATO usage is rule of engagement 421. That rule states: "Attack against any forces
or any targets demonstrating hostile intent (not constituting an imminent attack)
against NATO forces is authorised." 39
In Australian ROE doctrine and practice, the concepts of hostile act and hostile
intent are generally employed in relation to individual and unit self-defense as
ROE shorthand for the domestic criminal law requirements of necessity, immi-
nence and reasonableness of use of force in individual self-defense. This is also the
manner in which these two concepts are utilized in the International Institute of
Humanitarian Law's Rules of Engagement Handbook. 40
The third example of an ROE implication of a NIAC conflict characterization
decision is that Australia must apply a whole range of more stringent rules and pro-
cesses to many enabling capabilities. In NIAC, it really matters what, precisely, the
civilian contractor operator of an unmanned aerial vehicle is doing. Certain
305
An Australian Perspective on Non-International Armed Conflict
actions will not place that civilian in the position of becoming a direct participant
in hostilities (and thus subject to the temporary or longer-term loss of the civilian
protections that attend this change in "status"), whereas certain other acts will do
so. In law enforcement/stabilization operations, it does not matter nearly so much
who the operator is; the operator's status is incontrovertibly not that of a direct
participant in hostilities because there are, in a LOAC sense, no hostilities in which
to participate.
Finally, one very interesting ROE issue which has emerged in some civilian
casualty incident inquiry reports that Australia and many other TCNs publicly
release from time to time is the very fluidity and uncertainty that often surround
the status characterization of the person killed. This has meant that assertions of
justification are often two-pronged. When explaining a use of lethal force in a
NIAC context, it is not unusual for military personnel to report it as a consequence
of self-defense and the result of a reasonably held belief — in the circumstances pre-
vailing at the time — that the "target" was a fighter member of an OAG. This para-
digm mixing is not merely an Australian legal oddity. As Constantin von der
Groben observed in relation to the German prosecutor's investigation into the
Kunduz tanker incident in Afghanistan in 2009 (a scenario involving uncertainty
as to the precise legal paradigm against which to assess the conduct),
[t]he ambiguity in the facts follows an ambiguity in the applicable laws. The problem
with the airstrike is that it was unclear whether it had been performed as part of a non-
international armed conflict in Afghanistan or just as part of a stabilization mission
below the threshold of "armed conflict." 41
The consequence was that until the prosecutor settled the issue, there was un-
certainty as to whether the deaths inflicted stood to be assessed against general Ger-
man criminal law (self-defense) or separate LOAC-based German criminal law
(targeting). Similarly, the U.S. government — as a consequence of the initially con-
fused manner in which the Osama bin Laden "kill/capture" mission was presented
to the public 42 — has also faced this "killing a legitimate target" versus "killed in
self-defense when he moved to attack one of those sent to arrest him" justificatory
conundrum. This difficulty in paradigmatic justification rarely arises in the context
of I AC (other than in situations of occupation), where the reason cited for killing
those in enemy uniform is generally precisely that they were targetable enemy com-
batants, and thus legitimate targets under LOAC. Self-defense does not generally
arise in terms of primary legal justifications, even though, of course, it is routine
that military personnel of each party to the I AC will kill those of the adversary at a
time when both are engaged in what their own domestic law would recognize as an
306
Rob McLaughlin
in extremis situation where self-defense was naturally available as a justification or
excuse. Nor does this dualist justification present as necessary (or indeed legally
possible) in less-than-NIAC law enforcement contexts, where status is irrelevant
because all are "civilians"; thus, the available justification for use of lethal force is
self-defense and LOAC-based targeting authorizations are not legally available.
One example of this paradigm mixing may be found in a publicly released ADF
Inquiry Officer Report, "Possible Civilian Casualties Resulting from Clearance of a
Compound at [Redacted], Afghanistan, on 2 Apr 09. " 43 In this report, the inquiry
officer determined that the Australian force element entered a compound where
an insurgent leader was identified as being present and in the clearance process
shot and killed a number of men whom they believed to be in firing positions and
to be directly participating in hostilities. But the precise explanation for each death
is said to be "self-defense," although this is buttressed with assertions of belief as to
the direct-participation-in-hostilities status of those killed. In my view, this is a po-
tentially substantive legal issue precisely because Australian criminal law requires
different standards of assessment for killings in self-defense, as distinct from kill-
ings in the context of NIAC of civilians taking a direct part in hostilities and/or
fighter members of an OAG. Under LOAC, it is clear that "defense" against an
"attack" is bound by the same LOAC rules as attack. 44 This logically means, for ex-
ample, that a soldier cannot use CS gas "in self-defense" against an attack by fighter
members of the adversary OAG, as use of such riot control agents against the LOAC-
targetable enemy would likely breach Article 1(5) of the Chemical Weapons Con-
vention. 45 It would also mean that the death, injury and destruction caused in the
"defensive" action would be assessable against the unique and highly contextual
LOAC conception of proportionality. 46 But "self-defense" in Australian criminal
law 47 is not bound by the same limitations or assessment criteria. There is no legal
prohibition on use of a chemical spray (Mace, for example) in self-defense and
LOAC "proportionality" is not the same as the criminal law self-defense require-
ments expressed in elements such as "reasonableness," "imminence" and "neces-
sity." In my own view, the concept of a "TIC" (troops in contact) action against
civilians taking a direct part in hostilities/OAG fighters in NIAC contexts has com-
plicated this issue by perhaps inadvertently dressing what is fundamentally a
LOAC situation of attack and response in the legal rhetoric of urgent self-defense. I
do believe that this is a sleeper problem with potentially serious legal consequences
that may be deleterious for operational confidence if a claim of "self-defense" (as
opposed to a LOAC justification) is tested in a domestic court that may take little —
or worse, incorrect but precedent setting — cognizance of the armed conflict context
and the alternative assessment criteria that LOAC provides.
307
An Australian Perspective on Non-International Armed Conflict
Less-Than-NIAC ROE— East Timor
In East Timor, the decision to characterize the conflict as a less-than-NIAC law en-
forcement/stabilization operation created a different set of ROE issues. The first,
and most significant, was the manner by which ROE delineate use-of- force options
as between self-defense (where lethal force is permitted) and, separately, mission
accomplishment (where, for Australia at any rate, lethal force is not permitted).
Working through this issue via the mechanism of ROE is important, but not sim-
ple. INTERFET ROE contained a rule apparently authorizing use of force, includ-
ing lethal force, for mission accomplishment. In NIAC contexts, such a rule is, of
course, the norm, as it lays the general authorization for use of lethal force outside
self-defense, allowing further rules to then detail when and how this lethal force
may be employed — targeting, status and identification rules, for example. But in
less-than-NIAC law enforcement operations, Australian criminal law does not
generally countenance use of lethal force other than in self-defense, which was the
subject of a separate series of rules in the UNTAET ROE. In fact, the Australian
commander of INTERFET actually restricted use of lethal force to situations of
self-defense only, thus, in effect, reading down the mission accomplishment rule. 48
In my view, it was both operationally sound and legally necessary to read the
INTERFET mission accomplishment rule down in this manner.
The second ROE issue in this context — one which is not an issue where the
conflict is characterized as a NIAC — is lingering uncertainty as to what, precisely,
is permissible in terms of use of lethal force when a United Nations Security
Council Chapter VII "all necessary means" authorization is to be applied in a less-
than-NIAC context. That is, does this authorization provide a non-LOAC-based
permission to use lethal force for mission accomplishment where there is no issue
of self-defense in play? This is a highly complicated question that can only be ana-
lyzed through an ecumenical approach taking both international and specific
TCN domestic law into account. In my view — and I will readily admit it is a con-
tested view — there is no recognition in Australian law (nor in international law,
I would also submit) of a "third" paradigm permitting use of lethal force in pur-
suance of a Security Council mandate, outside of self-defense, in the absence of
armed conflict. That is, regardless of a Chapter VII "all necessary means" authori-
zation, if the conflict has not been characterized as an armed conflict, then there
is no authority to use lethal force for any reason outside self-defense. 49 Therefore,
it is not possible to justify an ROE permitting use of lethal force in (non-self-defense
based) mission accomplishment situations on the basis of an "all necessary means"
authorization.
In East Timor, upon transition to UNTAET and UN ROE, this situation became
even more opaque. The April 28, 2000 UN ROE stated that "UNTAET military
308
Rob McLaughlin
personnel are required to comply with International Law, including the Law of
Armed Conflict . . . and to apply the ROE in accordance with those laws." 50 The
ROE then detailed "Level of Force" rules that permitted use of lethal force in self-
defense, but also in a series of what would otherwise be better understood as mis-
sion accomplishment-based actions. These rules included authorizations to use
lethal force against any party who limited or intended to limit UNTAET freedom
of movement, and against any armed party that attempted to prevent UNTAET
personnel from discharging their duty. 51 The issue of what, precisely, the UN
means when it says "self-defense" in the context of UN operations, and, indeed,
whether "self-defense of the mandate" is self-defense as understood in many do-
mestic legal systems at all, is, I believe, a well obfuscated and often avoided opera-
tional question. 52 However, given the Australian characterization of the context as
less-than-NIAC law enforcement, any mission accomplishment ROE that allowed
use of lethal force outside of self-defense had to be assessed against the standard of
general Australian criminal law (as that is the standard against which a soldier who
used lethal force would be assessed), not the Australian domestication of LOAC
into Australian law. Thus these rules — although they were UN ROE — could not, as
a matter of Australian law, be applied by Australian forces as drafted, although it is
equally clear that other TCNs could apply these rules to their fullest extent and still
remain in compliance with their own domestic law.
This general issue discloses a third ROE challenge inherent in deciding to adopt
a less-than-NIAC law enforcement characterization — force protection. In the East
Timor context, this conundrum came to the fore when militia elements recom-
menced cross-border raiding activity, killed a number of UNTAET Peacekeeping
Force (PKF) members and retreated back into West Timor (Indonesian territory)
for sanctuary. To deal with this, the ROE were amended to provide an "expanded"
definition of hostile act/hostile intent which provided that militia identified as
being armed and moving in a tactical manner could in certain situations be en-
gaged with lethal force "in self-defense." The ROE achieved this by determining
that the PKF could legitimately characterize such conduct as constituting an immi-
nent threat. 53
The ROE issue that arises, however, is that the consciously considered decision
to characterize a conflict situation as less-than-NIAC law enforcement when a
NIAC characterization possibility exists carries with it some legal risk. This results
when the bounds of self-defense — as the only available lawful justification for use
of lethal force — have to be stretched within the law enforcement paradigm to al-
low an adequate response to a developing threat.
309
An Australian Perspective on Non-International Armed Conflict
Treatment of Captured/Detained Personnel
In many respects, despite the highly political and strategically sensitive nature of
detainee issues in military operations, for Australia this field of endeavor actually
discloses very little difference between implementation in NIAC and that in less-
than-NIAC law enforcement/stabilization operations. This admittedly contentious
assertion can be illustrated via a brief examination of the fundamental principles —
distilled from public statements and experience, and uncluttered by context-
specific legal terminology — applied in detainee operations in East Timor and
Afghanistan.
In East Timor, where the structures, institutions, and agents of law and order
had entirely dissolved, they had to be rebuilt from scratch, first on an interim basis
by INTERFET, and then on a more enduring basis by UNTAET, prior to full East
Timorese independence in May 2002. To cover the gap, Australia established a
Detainee Management Unit (DMU), which comprised an independent military
judge, counsel for detainees, a prosecutor and a detention visitor who maintained
an independent check on detention processes and conditions. 54 The DMU was
mandated to review ongoing detention, not to try offenses. The ultimate aim was
simply to ensure that only those against whom there was a reasonable case of future
prosecution for a serious offense (under the transitional justice system then being
reconstructed) remained in detention. The fundamental principles governing de-
tention arrangements during INTERFET are arguably distillable as follows:
1 . Ensuring a process that allowed for quick initial removal from the streets
of people posing security/stability risks.
2. Ensuring protection of the relevant human rights for detainees.
3. Using local criminal or security law as the reason/basis for detention,
both as a recognition of the primary sovereignty at play within the terri-
tory, and as a means of developing and promoting capacity within that
sovereignty.
4. Using analogous elements of LOAC, on a policy as opposed to dejure
basis, to inform detention operations.
5. Having in place systems of guarantees for fundamental human rights as
to treatment and legal processes post-handover into the developing East
Timor criminal justice system.
310
Rob McLaughlin
In Afghanistan, when Australia redeployed to Uruzgan Province as a partner
with Dutch forces, the detainee management arrangements reflected the fact that
Australia had negotiated a memorandum of understanding (MOU) with the
Dutch government, under which Dutch forces took full responsibility for the
detention and handover of all Australian-apprehended detainees. The Dutch had
separately negotiated an MOU with the government of Afghanistan that ad-
dressed handover and ongoing monitoring arrangements for all detainees (in-
cluding Australian-"sourced" detainees) who were handed over to Afghan
authorities in line with ISAF arrangements with the government of Afghanistan.
On August 1, 2010, as the Dutch force redeployed out of Uruzgan, Australia took
full responsibility for its detainees, and, as a consequence, negotiated MOUs with
Afghanistan and the United States on handover and monitoring arrangements. 55
Despite the very different conflict context — a NIAC in which Australia is a bellig-
erent party — there is arguably little substantial difference between the fundamen-
tal principles governing the Australian approach to detention operations in East
Timor under INTERFET and UNTAET, and those governing detention opera-
tions in Afghanistan. That is, regardless of the context and the legal paraphernalia
that attends it — be it NIAC or less-than-NIAC conflict — the fundamental princi-
ples governing detention operations are almost indistinguishable. The quotes be-
neath each adapted principle distilled from the INTERFET detention operations
are taken from the Australian Minister for Defence's December 14, 2010 detainee
management arrangements statement and his March 23, 201 1 Detainee Arrange-
ments Briefing Paper, and serve to illustrate the virtually unchanged nature of
detentions between INTERFET and Afghanistan:
1. Ensuring a process that allows for quick initial removal from the battle-
space of people posing security/stability risks.
"The first priority is the critical need to remove insurgents from the bat-
tlefield, where they endanger Australian, International Security Assis-
tance Force and Afghan lives." 56
9
2. Ensuring protection of the relevant human rights for detainees.
"The second priority is the need to ensure humane treatment of detain-
ees, consistent with Australian values and our legal obligations." 57
3. Using local criminal or security law as the reason/basis for detention, both
as a recognition of the primary sovereignty at play within the territory and as
a means of developing and promoting capacity within that sovereignty.
311
An Australian Perspective on Non-International Armed Conflict
"Once initial screening is complete, detainees are transferred either to
Afghan or United States custody, or released if there is insufficient evi-
dence to justify ongoing detention." 58
4. Using elements of LOAC, on a policy basis as opposed to dejure, to inform
detention operations.
In comparing detention operations across NIAC and less-than-NIAC
contexts, I believe that this "principle" provides the most interesting and
sensitive measurement as to the degree to which the two regimes for de-
tention are now almost indistinguishable. As the Minister for Defence
observed, "[t]he detainee management framework draws on applicable
international standards and advice from international organizations. It is
consistent with [that is, not based on] the Laws of Armed Conflict and the
Geneva Conventions." 59
As will be evident, NIAC LOAC was not described as the governing law
for NIAC detention operations, but rather as simply an informing para-
digm. Furthermore, I would hazard to argue that this is not merely an
Australian development — UK cases (in the UK Court of Appeal and
House of Lords/UK Supreme Court, and before the European Court of
Human Rights), such asAlJedda y 60 Al-Skeini 61 and Maya Evans, 62 also in-
dicate this trend toward assessing detention operations in NIAC through
a law enforcement and human rights-governed prism, as opposed to as a
primarily LOAC-governed issue.
5. Having in place systems of guarantees for fundamental human rights as
to treatment and legal processes post-handover into the developing
Afghan criminal justice system.
As the Minister for Defence stated: "A detainee monitoring team of Aus-
tralian officials monitors detainees' welfare and conditions while they are
in US or Afghan custody, until they are released or sentenced. The moni-
toring team visit detainees shortly after transfer and around every four
weeks after the initial visits." 63
This makes clear the scope of and arrangements for this post-handover
monitoring are not merely presentational, but are designed to be effective
and remedial: "This monitoring is underpinned by formal arrangements
with Afghanistan and the US, which include assurances on the humane
312
Rob McLaughlin
treatment of detainees and free access by Australian officials and human
rights organisations." 64
Indeed, this deep concern with post-handover monitoring, even where the
handover has been to proper representatives of the territorial sovereignty — a fun-
damentally human rights-based as opposed to LOAC-based concern — is reflected
in the recognition, but general dismissal, of the logistical difficulties involved in
"the current requirement for an initial detainee monitoring visit to occur within 72
hours after a detainee is transferred from the Australian Initial Screening Area to
US or Afghan custody." 65 A policy decision to retain this requirement, because it is
practically important, regardless of the significant logistical problems it can pose, is
indicative of this concern.
It thus seems reasonably safe to assert, I would argue, that the fundamental
principles governing detention operations in East Timor and Afghanistan — one a
less-than-NIAC context and the other clearly a NIAC LOAC-governed context —
are hardly distinguishable. From a purist legal perspective, this may be sound or
unsound, laudable or regrettable. But that is not the point. The practical point is
that this is how operational practice is evolving, and that — in line with the human-
ize and harmonize agenda which is seeing NIAC squeezed between colonizing ten-
dencies from below (human rights) and above (IAC LOAC) — there has been little
objection to this evolution. Indeed, apart from the detailed requirements of pris-
oner of war status, processes and regulation that apply in IAC, it is fast becoming
arguable that detention operations in armed conflict have now been almost com-
pletely colonized by the human rights paradigm and law enforcement sensibilities.
Conclusion
The Australian experience, I believe, clearly illustrates that in potential NIAC
contexts, conflict characterization decisions — from which almost all other subor-
dinate operational legal issues will take their lead — are subject to a mixed legal/
policy approach. And from this initial stepping-off point, core subsidiary opera-
tions law decisions, such as characterization of the adversary, and ROE, will take
their divergent leads. I accept that this is a potentially contentious conclusion for
LOAC purists who will insist that characterization decisions are only about "the
facts on the ground." The rationale for the purist view is well expressed in Pictet's
most humanitarian explanation of this seemingly clear and simple principle: "A
wounded soldier is not more deserving, or less deserving, of medical treatment
according to whether his Government does, or does not, recognize the existence
of a state of war." 66
313
An Australian Perspective on Non-International Armed Conflict
I respectfully disagree that the characterization obligation, when dealing with
the threshold between NIAC and less-than-NIAC conflict contexts, is capable of
being read in such a purist, black letter law manner. The purist admonition to
rely on "facts" has always been a call to an objective test using a narrow range of
fairly self-evident indicators. But the jurisdictional "facts" that inhabit the thresh-
old between NIAC and less-than-NIAC conflict contexts are significantly less ob-
jective than in prospective IAC situations, quite apart from lingering legal
uncertainties as to how NIAC relates to IAC or "internationalized internal armed
conflict" occurring in the same battlespace. The "facts" relevant to determining
on which side of the law enforcement/NIAC threshold a situation falls involve as-
sessing highly flexible concepts such as violence, banditry, terrorism and threat.
As Geoffrey Best observes of this conundrum for the negotiators of the Geneva
Conventions, "[t]hey had known what an international war was, but how were
they to know a non-international armed conflict when they saw one? How were
they to tell it from mob violence, riots, and banditry? . . . These were not silly or
necessarily non-humanitarian questions." 67
Genuflection to the objective finality of the "facts" has never been, and still is
not, the full picture in characterization at the less-than-NIAC civil disturbance/
NIAC threshold. I believe that this assessment is readily evidenced in the Australian
experience of East Timor and Afghanistan — two conflict contexts in which the
"Australian approach to NIAC" (to the extent that a distinct approach could be
said to exist) has been played out down very different paths. In both contexts, the
decision as to conflict characterization as NIAC or less-than-NIAC civil distur-
bance was not only intensely political, but also subject to a high degree of reverber-
ation in that each decision clearly indicates that subordinate issues — such as
whether to make lethal targeting authorizations available to the country's forces or
not — can influence the preliminary conflict characterization decision.
Notes
1. Cordula Droege, The Interplay between International Humanitarian Law and Interna-
tional Human Rights Law in Situations of Armed Conflict, 40 ISRAEL LAW REVIEW 310 (2007).
2. See, e.g., the differing conclusions in Report of the Secretary-General's Panel of Inquiry
on the 31 May 2010 Flotilla Incident H 69-81 (2011), available at http://unispal.un.org/pdfs/
GazaFlotillaPanelReport.pdf; Jacob Turkel et al., 1 The Public Commission to Examine the
Maritime Incident of 31 May 2010, ffll 13-1 12 (201 1), available at http://turkel-committee.gov.il/
files/wordocs//87072002 11 english.pdf; Turkish National Commission of Inquiry, Report on
the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010, at 60-99 (201 1),
available at http://gazaflotilla.delegitimize.com/wp-content/uploads/2011/02/official-turkish
-inquiry.pdf.
314
Rob McLaughlin
3. For example, on Afghanistan 2001-11 see generally Rogier Bartels, Timelines, Bor-
derlines and Conflicts: The Historical Evolution of the Legal Divide between International and
Non-International Armed Conflicts, 91 INTERNATIONAL REVIEW OF THE RED CROSS 35 (2009);
James G. Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian
Law: A Critique of Internationalised Armed Conflict, 85 INTERNATIONAL REVIEW OF THE RED
CROSS 313 (2003); Dawn Steinhoff, Talking to the Enemy: State Legitimacy Concerns with Engag-
ing Non-State Armed Groups, 45 TEXAS INTERNATIONAL LAW JOURNAL 297 (2009); Annyssa
Belial, Gilles Giaca & Stuart Casey-Maslen, International Law and Armed Non-State Actors in Af-
ghanistan, 93 International Review of the Red Cross l, 5-7 (201 1).
4. This labeling was maintained even though the proposed solution was cast in terms of
language more traditionally associated with NIAC contexts — "self-determination," "political
settlement" and so on. See Mr. Prime Minister John Major, Ireland (Joint Declaration), Dec. 15,
1993, 234 PARL. DEB., H.C. (6th ser.) (1993) 1071-82 (U.K.), available at http://www.publications
.parliament.uk/pa/cml99394/cmhansrd/1993-12-15/Debate-l.html. The United Kingdom
maintained this discipline in characterizing the situation throughout the entire operation in
Northern Ireland, including through peaks of violence such as in 1970-71, when (for example)
the Joint Security Committee was concerned to ensure "balanced reporting" of what was "a near-
war situation." See generally Conclusions of a Meeting of the Joint Security Committee Held on
Thursday 4 February 1971 in Stormont Castle at 1130 AM, available at http://cain.ulst.ac.uk/
proni/1971/proni_HA-32-3-5_1971-02-04.pdf (last visited Nov. 21, 2011). See also Prime
Minister's Meeting with Home Secretary - Wednesday 4 February 1970, ffl| 1, 12, available at
http://cain.ulst.ac.uk/proni/1970/proni_CAB-9-G-91-2_1970-02-04.pdf (last visited Nov. 21,
201 1). Both provide examples of the UK government's stress upon a law enforcement approach
to the situation.
5. See generally United Nations Operation in Somalia (UNOSOM) 1992, AUSTRALIAN WAR
MEMORIAL, http://www.awm.gov.au/units/unit_20244.asp (last visited Nov. 21, 2011) ("The
Australians were based in Baidoa Humanitarian Relief Sector, west of Mogadishu. The Austra-
lian contingent in Baidoa had four main roles: maintain a secure environment in Baidoa; main-
tain a presence in the surrounding countryside; protect aid convoys; and assist in the equitable
distribution of aid.").
6. See, e.g., Criminal Code Act 1995 (Cth) s 10.4 (Austl.) ("self-defence"), available at http://
www.comlaw.gov.au/Details/ (then follow Key Resources hyperlink; then follow Criminal Code
Act 1995 hyperlink).
7. Id., div268.
8. See, e.g., JOHN MARTINKUS, A DIRTY LITTLE WAR XV (2001).
9. australian defence force military law centre, law and military
Operations in East Timor Sept 1999-Feb 2000: Lessons Learnt for Legal Officers 12
(2000) [hereinafter EAST TIMOR LESSONS LEARNT] . ,
10. Id. See also Report of the Security Council Mission to Jakarta and Dili, 8 to 12 September
1999,HH 7, 11, 14-26, U.N. Doc. S/1999/976 (Sept. 14, 1999), available at http://daccess-dds-ny
.un.org/doc/UNDOC/GEN/N99/262/20/PDF/N9926220.pdf?OpenElement.
11. Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment, 1 562 (Int'l Crim. Trib. for the
Former Yugoslavia May 7, 1997), available at http://www.icty.Org/x/cases/tadic/tjug/en/
tad-tsj70507JT2-e.pdf.
1 2. Cth, Parliamentary Debates, House of Representatives, 1 7 September 200 1 , 30739 (John
Howard, Prime Minister) (Austl.).
13. Press Conference on U.S. -Led Response, Prime Minister John Howard (Oct. 4, 2001),
transcript available at http://www.patriotresource.com/wtc/intl/oct/0104/australia.html.
315
An Australian Perspective on Non-International Armed Conflict
14. Security Treaty between Australia, New Zealand, and the United States of America, Sept.
1, 1951, 3 U.S.T. 3420, 131 U.N.T.S. 83, available at http://www.austlii.edu.au/au/other/dfat/
treaties/1952/2.html.
15. Press Statement, Prime Minister John Howard, Howard Government Invokes ANZUS
Treaty (Sept. 14, 2001), available at http://australianpolitics.com/news/2001/01-09-14c.shtml.
Prime Minister Howard spoke of the Al Qaeda/Taliban attacks on the United States as "an open
assault upon its territorial integrity," clearly indicating a militarized/armed conflict-based ap-
preciation of the conflict context, as opposed to viewing it as a law enforcement challenge. Cth,
Parliamentary Debates, House of Representatives, 27 September 2001, 31684 (John Howard,
Prime Minister) (Austl.).
1 6. Stephen Smith, Minister for Defence, Paper on Afghanistan (Mar. 23, 20 1 1 ), available at
http://www.minister.defence.gov.au/2011/03/23/minister-for-defence-paper-presented-by-the
-minister-for-defence-stephen-smith-on-afghanistan/ [hereinafter Paper on Afghanistan (Mar.
23,2011)].
17. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3 [hereinaf-
ter API].
18. See, e.g., East Timor (Port, v Austl.), 1995 I.C.J. 90 ffl[ 16-17 (]une 30), available at http://
www.icj-cij.org/docket/files/84/6949.pdf.
19. See, e.g., Michael Kelly et al., Legal Aspects of Australia's Involvement in the International
Force for East Timor, 83 INTERNATIONAL REVIEW OF THE RED CROSS 101 (2001) ("The Security
Council mission reported that the violence in East Timor after the ballot could not have oc-
curred without the involvement of large elements of the Indonesian military and police, con-
cluding that the Indonesian authorities were either unwilling or unable to provide an
environment for the peaceful implementation of the 5 May agreements."). The then Australian
Foreign Minister, Alexander Downer, was explicit on this point: "We have made the point that
there are clearly links between members of the [Indonesian military] and the militias, and that is
not a matter that is debated any longer even by the [Indonesian military] itself or by the Indone-
sian government." Cth, Parliamentary Debates, House of Representatives, 20 September 1999,
9927 (Alexander Downer, Minister for Foreign Affairs) (Austl.).
20. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125
U.N.T.S. 609.
21. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field art. 3, Aug. 12,1 949, 6 U.S.T. 3 1 1 4, 75 U.N.T.S. 3 1 ; Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of
Prisoners of War art. 3, Aug. 12,1 949, 6 U.S.T. 33 1 6, 75 U.N.T.S. 1 35; Convention Relative to the
Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287 [hereinafter GC IV].
22. See S.C. Res. 1264, pmbl., ffll 4, 5, U.N. Doc. S/RES/1264 (Sept. 15, 1999) ("Welcoming
the statement by the President of Indonesia on 12 September 1999 in which he expressed the
readiness of Indonesia to accept an international peacekeeping force through the United Nations in
East Timor"; "4. Welcomes the expressed commitment of the Government of Indonesia to cooperate
with the multinational force in all aspects of the implementation of its mandate and looks forward
to close coordination between the multinational force and the Government of Indonesia; 5. Un-
derlines the Government of Indonesia's continuing responsibility under the Agreements of 5 May
1999, taking into account the mandate of the multinational force set out in paragraph 3 above,
316
Rob McLaughlin
to maintain peace and security in East Timor in the interim phase between the conclusion of the
popular consultation and the start of the implementation of its result and to guarantee the secu-
rity of the personnel and premises of UNAMET.") (emphasis added).
23. East Timor Lessons Learnt, supra note 9, at 23.
24. GC IV, supra note 2 1 .
25. Id., Annex E: Defence Legal Office Policy Statement on the Application of the Fourth
Geneva Convention of 1949 to Possible Deployment of the ADF to East Timor (Sept. 3,
1999).
26. Id., 1ffl 13-14.
27. Nils Melzer, International Committee of the Red Cross, Interpretive Guid-
ance on the Notion of Direct Participation in Hostilities under International
HUMANITARIAN LAW (2009), available at http://www.icrc.org/eng/assets/files/other/icrc_002
_0990.pdf.
28. James Risen, U.S. to Hunt Down Afghan Drug Lords Tied to Taliban, NEW YORK TIMES
(Aug. 9, 2009), http://www.nytimes.com/2009/08/10/world/asia/10afghan.html.
29. Richard Norton-Taylor & Jon Boone, US puts Afghan drug lords on hit list to disrupt
Taliban finances, THE GUARDIAN (UNITED KINGDOM), Aug. 10, 2009, International, at 17, avail-
able at http://www.guardian.co.uk/world/2009/aug/ 1 0/us-policy-drugs-afghanistan-taliban.
30. Dan Karpenchuk, NATO troops to go after Afghan drug lords, ABC NEWS (Feb. 7, 2009),
http://www.abc.net.au/news/2009-02-07/nato-troops-to-go-after-afghan-drug-lords/286182.
31. Press Statement, Joel Fitzgibbon, Minister for Defence, Australian Artillerymen Deploy
to Afghanistan in Support of UK Operations (Mar. 13, 2008), available at http://defence.gov.au/
minister/70tpl.cfm?CurrentId=7498.
32. Cth, Parliamentary Debates, House of Representatives, 23 March 2011, 2969 (Stephen
Smith, Minister for Defence) (Austl.).
33. Cth, Parliamentary Debates, House of Representatives, 22 September 1999, 10279 (Michael
Danby) (Austl.).
34. Cth, Parliamentary Debates, House of Representatives, 30 June 1999, 7929 (Alexander
Downer, Minister for Foreign Affairs) (Austl.).
35. Cth, Parliamentary Debates, House of Representatives, 20 September 1999, 9926 (Alex-
ander Downer, Minister for Foreign Affairs) (Austl.).
36. Cth, Parliamentary Debates, House of Representatives, 20 September 1999, 9928 (Alex-
ander Downer, Minister for Foreign Affairs) (Austl.).
37. See Australian Government, Department of Defence, Fact Sheet: Australia's Commit-
ment in Afghanistan, http://www.defence.gov.au/op/afghanistan/info/factsheet.htm (last vis-
ited Nov. 21, 2011). See also Stephen Smith, Minister for Defence, Paper on Afghanistan (May
12, 2011), available at http://www.minister.defence.gov.au/2011/05/12/paper-by-presented-by
-minister-for-defence-stephen-smith-on-afghanistan/ [hereinafter Papef on Afghanistan (May
12,2011)].
38. See, for example, the definitions and brief outlines of Rule 421 and Series 41 in the NATO
Legal Deskbook. SHERROD L. BUMGARDNER ET AL., NATO LEGAL DESKBOOK 255-56 (2d ed.
2010), available at https://transnet.act.nato.int/WISE/Library/Legal/LEGALDESKB/file/_WFS/
LEGAL%20DESKBOOK%20FIN%20AL%20version%20-%2022%20SEPT%202010.pdf.
39. Id. at 256 (emphasis added). The employment of "forces" and "targets" as the descriptors
of the subjects of the rule clearly links this conception of hostile intent to LOAC-based status
and authorizations, not those relevant to hostile intent in the context of individual or unit self-
defense in domestic criminal law.
317
An Australian Perspective on Non-International Armed Conflict
40. Dennis Mandsager et al., International Institute of Humanitarian Law, San
Remo Handbook on Rules of Engagement 3-4, 22-25, 82 (2009), available at http://www
.iihl.org/iihl/Documents/ROE%20handbook%20ENG%20May%202011%20PRINT%20RUN
.pdf.
41. Constantin von der Groben, Criminal Responsibility of German Soldiers in Afghanistan:
The Case of Colonel Klein, 1 1 GERMAN LAW JOURNAL 469, 475 (2010).
42. See, e.g., James J. Zogby, A Bungled PR Job Keeps the Bin Laden Controversy Alive, AL
ARABIYA NEWS (May 25, 2011), http://english.alarabiya.net/views/2011/05/08/148269.html
?PHPSESSID=7dhvn5ksaknrltl3vphk32l9k0.
43. Available at http://www.defence.gov.au/coi/reports/IOReport20090402Slipper.pdf. See
the bivalence inherent in a combined reading of paragraphs 9, 12-13, 18, 22-23, 25-27 and 31-32.
44. AP I, supra note 17, art. 49(1) ("Attacks means acts of violence against the adversary,
whether in offence or defence.").
45. Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction art. 1(5), Jan. 13, 1993, 1974 U.N.T.S. 45 ("Each
State Party undertakes not to use riot control agents as a method of warfare.").
46. See AP I, supra note 17, arts. 51-52, 57.
47. Criminal Code Act 1995, supra note 6, s 10.4(2) ("A person carries out conduct in self-
defence if and only if he or she believes the conduct is necessary: (a) to defend himself or herself
or another person . . . and the conduct is a reasonable response in the circumstances as he or she
perceives them.").
48. East Timor Lessons Learnt, supra note 9, at 38.
49. My view on this issue is more fully described in Rob McLaughlin, The Legal Regime Ap-
plicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter
VII Mandate Authorising "All Necessary Means, " 1 2 JOURNAL OF CONFLICT AND SECURITY LAW
389 (2007).
50. UN ROE for the Military Component of the United Nations Mission in East Timor
(UNTAET) (MPS/3633) U 7(b) (Apr. 28, 2000), reprinted in Australian Defence Force, Military
Law Centre, Law and Military Operations in East Timor (UNTAET) Feb 2000-May 2002, An-
nexure X (2002).
51. M, 17(b), Rules 1.9 and 1.10.
52. See generally TREVOR FlNDLAY, THE USE OF FORCE IN UN PEACE OPERATIONS (2002).
53. Australian Defence Force, Military Law Centre, Law and Military Operations in East
Timor (UNTAET) Feb 2000-May 2002, 23 (2002); Dale Stephens, Military Involvement in Law
Enforcement, 92 INTERNATIONAL REVIEW OF THE RED CROSS 453, 462-63 (2010).
54. See Kelly et al., supra note 19.
55. Press Statement, Stephen Smith, Minister for Defence, Detainee Management in Afghani-
stan (Dec. 14, 2010), http://www.defence.gov.au/minister/Smithtpl.cfm?CurrentId=l 1212 [here-
inafter Detainee Management in Afghanistan].
56. Paper on Afghanistan (Mar. 23, 201 1), supra note 16.
57. Id.
58. Detainee Management in Afghanistan, supra note 55.
59. Paper on Afghanistan (Mar. 23, 2011), supra note 16 (my comment and emphasis
added).
60. R (on the application of Al-Jedda)v. Secretary of State for Defence, [2007] UKHL58;A1-
Jedda v. United Kingdom, 27021/08 Eur. Ct. H.R. (201 1), available at http://www.bailii.org/eu/
cases/ECHR/201 l/1092.html.
318
Rob McLaughlin
61. Al-Skeini and Others v. Secretary of State for Defence, [2007] UKHL 26; Al-Skeini and
Others v. United Kingdom, 55721/07 Eur. Ct. H.R. (201 1), available at http://www.bailii.org/eu/
cases/ECHR/201 l/1093.html.
62. The Queen (on the application of Maya Evans) v. Secretary of State for Defence, [2010]
EWHC 1445 (Admin).
63. Paper on Afghanistan (Mar. 23, 201 1), supra note 16.
64. Id.
65. Paper on Afghanistan (May 12, 2011), supra note 37 ("In the period 1 August 2010 to 8
May 201 1, Australia apprehended 590 detainees. Of these, 81 have been transferred to Afghan
authorities and 40 to US authorities. The remainder have been released following initial
screening.").
66. Commentary to Geneva Convention I for the Amelioration of the
Condition of Wounded and Sick in armed Forces in the Field 29 (Jean Pictet ed., 1952).
67. Geoffrey Best, War and Law since 1945, at 174 (1994).
319
PART VII
DETENTION IN NON-INTERNATIONAL
ARMED CONFLICTS
XV
Detention of Terrorists in the
Twenty-first Century
William K. Lietzau*
I. Introduction
Of all the instruments of power that may be employed to further national in-
terests, none yields collateral consequences that are more difficult to pre-
dict than the unleashing of military force. And with respect to the past decade's use
of that instrument, no consequence has engendered more debate, confusion or
passion than U.S. detention policy. This article attempts to clarify the reasons for
the controversy surrounding the policy — explaining it primarily as a function of
the nature of twenty-first-century warfare, as opposed to competing political or
ideological perspectives, as many claim. It then proffers a vision for moving past
the controversy.
At first, few recognized the juridical stressors associated with a twenty-first-
century armed conflict steeped in terrorism; most simply looked to old laws to ad-
dress this new type of conflict. In this context a rift began to form and grew ever
wider with the years of conflict. 1 Today, even many nations willing to share with
the United States the burdens of armed conflict have expressed significant dis-
comfort with U.S. legal endeavors related to detention. 2 This dissonance and the
* Deputy Assistant Secretary of Defense, Rule of Law and Detainee Policy. This article is adapted
from a speech given at Harvard University Law School in February 201 1 at a conference titled
"Understanding Detention and Predicting Prosecutions: Legal Challenges and Legislative Op-
tions Ten Years After 9/ 1 1 ." The views in this article are those of the author and do not necessar-
ily reflect the views of the Department of Defense or the United States government.
Detention of Terrorists in the Twenty-first Century
disquiet among our allies have impeded the United States' implementation of its
plans, diminished its effectiveness in fighting terrorism and stymied the important
work that must be done to establish an effective legal regime for the longer conflict
ahead. It is not much of a stretch to assert that the manner in which the United
States and its allies take up these challenges may very well reflect the most endur-
ing impact of the 9/11 attacks. Indeed, history teaches that changes in the law often
rank among the most noteworthy consequences of war. The goal, then, should be
first to diagnose correctly the problem confronting the United States and then to
identify the prescription that will yield a principled, credible and sustainable de-
tention policy.
The thesis is simple. Authority to detain and regulation of the conditions of de-
tention in the context of armed conflict derive most appropriately from the law of
war. As such, the general rules should be uncontroversial — armies have captured
and detained enemy fighters for years. But today's war is different: the enemy is not
a State, its fighters are not lawful combatants and the end of this conflict is not eas-
ily discerned. Extant law of war was not written for today's conflict, and an analysis
of it therefore exposes gaps that offend our twenty- first- century sensibilities. Fore-
most among the lacunae is the absence of appropriate processes for determining
who can and should be detained and for how long. The solution, then, is found in
today's efforts to identify the process that best ensures that we detain only those we
lawfully can detain and, even then, only those whose threat is so substantial that it
can be mitigated only by detention.
II. Identifying the Paradigm
The most fundamental component of controversy associated with the post-9/11
armed conflict is the confluence of legal regimes available to guide detentions.
Soon after 9/11, President George W. Bush made clear that he viewed al Qaeda's at-
tack as an act of war, 3 the response to which would include military force. 4 What
became known as the "global war on terror" had begun. When President Barack H.
Obama took office, he distanced himself from some of the more controversial poli-
cies of his predecessor, and he discarded from the conflict's lexicon the terms
"global" and "terror." But he did not abandon the legal framework of armed con-
flict. President Obama, with deliberate clarity, still used the vocabulary of war
when describing the conflict with al Qaeda, 5 including in his Nobel Peace Prize
acceptance speech, where he explained why peace-loving nations sometimes have a
duty to engage in armed conflict. 6 Fundamental to understanding U.S. detention
policy over the past decade is the comprehension that authority for detention flows
from the nature of warfare and the law of war that regulates it.
324
William K. Lietzau
As such, one would anticipate that anyone captured during an armed conflict
would be dealt with as a prisoner of war, without substantial debate. For centuries,
armies have captured and detained enemy fighters; few, if any, anticipated the dis-
sension that would accompany the practice today. Indeed, on 9/1 1, the office held
by this author (Detainee Policy) did not exist; basic humanitarian norms associ-
ated with wartime detention were well understood by the United States' highly
trained armed forces and a deputy assistant secretary-level position to oversee de-
tention policy would have seemed like substantial overkill.
There are several explanations for the adverse global reaction to such a funda-
mental and heretofore uncontroversial component of warfighting, but the primary
one is that the very status of this conflict as a "war" has been an issue of debate. The
clarion call to war discussed above has not always been discernible amid the cacoph-
ony of other instruments at work — most notably, that of law enforcement. In addi-
tion to his call to arms, President Bush's first post-9/1 1 speech included the promise
that terrorists would be brought to justice. 7 President Obama's 2009 Archives speech
similarly suggested a preference for criminal judicial processes. 8 Indeed, prior to
9/11, law enforcement had traditionally been the tool of choice for addressing terror-
ism, both domestically and in the international realm. 9 Many continue to adhere to
the view that law enforcement is the "right" paradigm for the conflict today. 10
This article takes the view that, both in 2001 and today, war was and is the cor-
rect paradigm to apply in characterizing the conflict itself and in addressing the is-
sue of detention. On September 12, 2001, the United Nations Security Council
passed a resolution expressly recognizing the United States' right to self-defense. 11
Days later, the North Atlantic Treaty Organization (NATO) took the unprece-
dented step of passing a collective defense resolution, citing Article 5 of the NATO
Charter. 12 ANZUS and Rio Pact nations passed similar resolutions, 13 and the U.S.
Congress, on September 13, enacted a joint resolution authorizing the President to
use "all necessary and appropriate force against those involved in the terrorist at-
tacks of 9/1 1." 14 In the early days after 9/11, there seemed to be ar\ almost univer-
sal recognition that the felling of New York's tallest buildings and a section of the
nation's military headquarters had ignited an armed conflict in the truest sense.
But acceptance of that paradigm waned as the population at Guantanamo grew.
Indeed, criticism of the "war" paradigm emerged in 2002 as a collateral ramifi-
cation of criticism of wartime detention policies. First came the Bush administra-
tion's decision that captured combatants would not be considered prisoners of
war. 15 The apparent limitless geographic reach of the United States' war-making
authorities ("global"), as well as the absence of a clear delineation of the enemy
("terror"), caused substantial concern in the international community that the
rule of law itself was at risk. And yet, although there are substantial flaws in the
325
Detention of Terrorists in the Twenty-first Century
syllogism that leads from discomfort with current policies to denial of the existence
of a war, the suggestion that this can be treated as a law enforcement problem is not
without sound precedent.
First, there is the simple fact that the citizenry of the United States have not been
witness to long-term law of war detention of enemy prisoners since World War II.
Both the Korean and Vietnam wars involved prisoners detained by our local allies.
Prisoners of war were held for only brief periods of time in the first Gulf War, and
detention periods were even shorter in the more limited conflicts that punctuated
the interludes.
More important, prior to 9/1 1 the principal means for dealing with terrorist at-
tacks — at least those without a clear State sponsor — was that of law enforcement.
In 1988, 259 people aboard the plane and 11 on the ground were killed in the
bombing of Pan American Flight 103. 16 The first Bush administration treated the
problem of apprehending suspects as one of diplomacy and extradition; 17 it was
clearly a law enforcement matter. In the 1993 World Trade Center bombing, six
people were killed and more than one thousand injured. 18 Law enforcement officials
conducted an extensive investigation, resulting ultimately in the apprehension, ex-
tradition, trial and conviction in U.S. District Court of most of the suspects in the
bombing, including Sheik Omar Abdel Rahman. 19 Again, we observe an unques-
tionably law enforcement response.
The 1998 embassy bombings in Nairobi, Kenya and Dar es Salaam, Tanzania
claimed the lives of twelve Americans and more than two hundred Kenyans and
Tanzanians. 20 The United States conducted a one-strike military response, 21 and
issued indictments against fifteen individuals, four of whom were apprehended by
foreign governments, extradited to the United States, and tried and convicted in
U.S. District Court. 22 Despite the mixed military and law enforcement response,
law enforcement efforts appear to have been both primary and sustained, while the
military component was less significant and transitory. 23
In recent years, international efforts to address the law as it relates to terrorism
have yielded a number of international agreements relevant to countering the ter-
rorist threat. As with domestic legislation, however, these conventions also reflect
a predisposition toward law enforcement. The United States responded to the at-
tack on the Khobar Towers complex housing U.S. military personnel in Saudi
Arabia both by launching a law enforcement investigation and by commencing an
international initiative that ultimately resulted in the negotiation and entry into
force of the Terrorist Bombing Convention. 24 Through the United Nations, the
United States has attempted to shore up weaknesses in the law enforcement model
through treaties establishing a regime of aut dedere autpunire (extradite or prose-
cute) for terrorism offenses. 25 Other examples of the campaign to reinforce the
326
William K. Lietzau
law enforcement archetype in countering transnational armed groups include
U.S. support for the Terrorist Financing Convention and efforts toward a Nuclear
Terrorism Convention. 26
Internationally, other countries traditionally rely on law enforcement to com-
bat terrorism as well. Numerous countries, including Canada, France, Germany,
Israel, Colombia, Russia and the United Kingdom, have established programs to
combat terrorism that, while markedly different in organization and process, share
striking similarities: each vests primary responsibility for response to terrorist inci-
dents in a designated central authority, typically its national or local police; each
embraces a national counterterrorism policy involving a variety of strategies, in-
cluding intelligence collection, police presence and various physical security mea-
sures; and each primarily relies on its general criminal laws to prosecute terrorists,
although most also have specific terrorism-related laws that allow for special investi-
gation or prosecution modalities and increased penalties. Taken together, these
components evidence an across-the-board, unambiguous reliance on the law en-
forcement paradigm in countering terrorism. 27 The respective British and Spanish
responses to terrorist-sponsored suicide bombings in the London subway and Ma-
drid's rail system confirmed Europe's staunch reliance on the law enforcement
model to fight terrorism. 28 And India's response to the Mumbai attack is indicative
of the paradigm's favored status even in conflict-torn South Asia. In the same vein,
the United States' choice of fora in which to prosecute persons accused in the first
few years after 9/11 was limited solely to the federal criminal court system. 29
The fact that law enforcement was used in the past is not a compelling argument
for its post-9/1 1 prevalence, however. The predominant global perspective imme-
diately after 9/11 appears to have manifested itself as an acknowledgment that law
enforcement had failed. Generally, civilizations prefer to live in peace, addressing
minor, disruptive violence with law enforcement tools designed for a peaceful state
of existence. But no one was interested in status quo after 9/1 1. Al Qaeda had been
at war with the United States for years, but its attack of 2001 changed the way that
conflict was viewed by others.
One could explain the United States' relatively unique post-9/11 shift as a
function of its relatively unique victimization at the time. But such a reading of
history would miss the mark. The United States still approaches terrorism as a law
enforcement matter; it is the distinct conflict with al Qaeda that is viewed differ-
ently. In the fall of 2001, the United States went to war with al Qaeda, a transna-
tional terrorist organization with global reach, and its territorial sponsors, the
Taliban. In hindsight, having substantially degraded the organization and col-
lected massive amounts of intelligence revealing al Qaeda's objectives and
327
Detention of Terrorists in the Twenty-first Century
capabilities, it can be seen that only the massive effort that amounted to an armed
conflict could have brought down Osama bin Laden.
III. Identifying the Problem
Acknowledging the confluence of legal regimes, we turn to the law governing
armed conflict, the lex specialise which recognizes that in time of war there has been
a disruption of the peacetime legal regime. 30 Because warfare is not new to human
experience, and the capture of enemy forces is certainly not unfamiliar to warfare,
one would expect that traditional detention modalities might naturally prevail
without fanfare. But al Qaeda's war with the United States and its allies continues
to challenge both the initial choice-of-law question and the limits of the constitu-
tive tenets of the relevant bodies of law — tenets that largely defined international
and domestic orders throughout the last half of the twentieth century. Soon after
the United States put boots on the ground in Afghanistan, it became apparent that
many of the most familiar jus in hello precepts were simply inapplicable to, or inad-
equate for, armed conflict of this type — armed conflict with a transnational non-
State organization employing terrorism as its modus operandi.
A graphic may assist in understanding and explaining the legal regimes in play
with respect to terrorist detention. This chart, artificial in that it does not exist in
any positive statement of international law, is nonetheless useful in reflecting the
disparate nature of applicable legal regimes that attend the detention of terrorists.
International Law
e
Public International Law
Law of Peace
lex generalis
Z
Human Rights Law
Law of War
lex specialis
jus ad bellum
Humanitarian Law
jus in bello
d bellum ^
Humanitari;
jus in belk
Unprivileged Belligerents ^^ m
\
Privileged Belligerents
Geneva Conventions
Criminal Procedure
Purpose: Punishment for past act
Standard: Proof beyond reasonable doubt
Purpose: Protection against future threat
Standard: Same as for targeting (plus)
Domestic Law
328
William K. Lietzau
The left side of the chart depicts the lexgeneralis of a peacetime society, labeled
"law of peace." On the right side is the lex specialis of the law of war. As one contin-
ues down the left side, human rights law is identified as most relevant to detention
issues. And, more important, crossing the line into domestic implementation of
international norms, criminal procedure is depicted as the body of law that pro-
vided authority for terrorist criminal detention throughout most of the twentieth
century. It represents the body of law applicable to any criminal trial (whether by
federal court or military commission). It is the body of law to which habeas judges
naturally first looked in their initial Guantanamo cases, and it is the only body of
law on this chart that is constituent in the curriculum of every American law stu-
dent. Even a law student who elects to study international law is more likely to fo-
cus on lexgeneralis than its less frequently utile wartime counterpart. Moreover, at
least in previous generations, jus in hello was likely to get short shrift relative to its
more engaging counterparties ad helium. That is changing, but the point is that
throughout most of the past decade, lawyers both in the United States and abroad
intuitively devolved to the criminal law model when seeking lawful justification
for the detention of terrorists.
Conversely, in the days following the establishment of the Guantanamo deten-
tion facility, very few even seemed to be aware that a wartime model for terrorist
detention existed. Historically, the United States has not used the law of war model
for the detention of terrorists; the law enforcement model was the focus of
counterterrorism policies for the better part of the last half century. 31 Few looked
to the law of armed conflict. And, as the empty boxes more significantly designate,
even were one to consult that body of law, one would find a paucity of domestic
implementing legislation associated with the authority to detain. Indeed, even a di-
rect application of Geneva law yields no applicable positive authority to capture
and detain. Authority to capture is inferred, and while the Third Convention rec-
ognizes the propriety of internment for prisoners of war in international armed
conflict, 32 such positive authority is absent for non-international armed conflict.
Finally, and most relevant to the international Tawyer, a review of the law of war
standards applicable to this particular conflict reveals significant omissions.
Geneva law, especially as it pertains to detention, is focused on the treatment of
prisoners of war — a category principally constituted by members of the armed
forces of a State that is party to the Conventions, in conflict with another State
party to the Conventions. 33 Rules applicable to a conflict "not of an international
character," 34 if that even accurately describes a conflict halfway around the world
in which the United States is joined by the armed forces of more than forty other
countries, are scant to say the least. 35
329
Detention of Terrorists in the Twenty-first Century
At its essence, the United States' first and most essential armed conflict at pres-
ent is that against al Qaeda, a transnational armed group in which none of the
members qualify for prisoner of war status. 36 Thus, it is no surprise that few turned
to the law of war as the appropriate paradigm for the post-9/1 1 detention of terror-
ists. And, even if the polity were completely immersed in the finer points ofjws in
bello, we would find little positive authority or guidance for the detention of an en-
emy that does not qualify for prisoner of war protections under even the most ex-
pansive reading of the Third Geneva Convention, yet is indisputably the primary
adversary in the conflict. 37 There are no "privileged belligerents" among those
whom the United States opposes.
Because of these unique circumstances, criticism of U.S. detention policies —
memorialized in iconic photographs from the early days of Guantanamo Bay — was
initially embodied in a claim that the United States was "violating" the Geneva
Conventions. 38 These claims morphed into the slightly more defensible assertion
that this "global war on terror" was not even a war because the law of war did not
extend to this type of undefined conflict. Indeed, President Bush's moniker fueled
recrimination as the geographically unbounded nature of the term "global war on
terror" disquieted those already uncomfortable with U.S. assertions of jus ad
bellum authority to use the military instrument. 39 That the target of the application
of force was a common noun — terror — only further distanced the endeavor from
more traditional armed conflict. 40
Nevertheless, we have had two U.S. presidents — separated by wide ideological
differences — similarly conclude that U.S. national security interests necessitate an
armed conflict with a transnational armed terrorist organization. 41 To jump then
to the conclusion that a radically different — and inherently unsuitable — peacetime
detention paradigm will work to bridge jus in bello's gaps, although conceptually at-
tractive to a litigious society happily governed by the rule of law, is simply not
sustainable.
Proof of this is found in the Obama administration's attempt to close
Guantanamo Bay and its focused effort to scrutinize thoroughly the case of each
Guantanamo detainee. The U.S. government made every effort to diminish the
population of detainees at Guantanamo by identifying criminals for prosecution,
as well as candidates for release or transfer to another country. 42 And yet, despite
these truly unprecedented efforts, the senior-most members of the President's
national security team determined unanimously that at least forty-eight detainees
could be neither prosecuted nor transferred. 43 As President Obama described them
in his Archives speech, "[t]hese are people who, in effect, remain at war with the
United States." 44
330
William K. Lietzau
Some who cling to the polemic of past years may claim that the lot of these forty-
eight detainees is simply a function of evidence so tainted by misdirected interro-
gation techniques that a successful prosecution option was rendered impossible.
But such an argument fails to further the effort to solve this complex problem, and
it fails to recognize the radically different purposes and circumstances that attend
the two disparate detention paradigms.
Looking to the legal regime associated with criminal procedure, the starting
point is liberty. In the United States, citizens walk freely in the streets unless
arrested based on a police officer's probable cause belief that a crime has been
committed and the individual to be detained committed it. 45 Within forty-eight
hours, the arresting officer must convince an independent magistrate of that
probable cause; 46 to avoid release on bail pending disposition of charges, a con-
vincing case of dangerousness or flight risk must be made, 47 a lawyer must be pro-
vided, 48 Miranda rights must be read 49 and a speedy trial clock begins to tick. 50 In
order to convict a pretrial detainee of the underlying offense that led to his or her
detention, a prosecutor must prove to a jury beyond a reasonable doubt every ele-
ment of an offense for which the individual is charged. 51 Once this occurs, the
sentencing authority can decide whether to set the individual free, or whether
further detention (incarceration) of the individual is warranted. This is what
human rights law provides in the United States. Our domestic implementation is
far more refined and nuanced than the antecedent human rights law.
But in war, the starting point is radically different. A member of the enemy force
in armed conflict is free only to the extent that he or she can avoid death or capture
by the adversary. To a U.S. soldier, the enemy's starting point may be as a target.
Under the law of war, combatants may be lawfully shot dead simply for being a
member of the enemy force — there is no requirement for proof beyond a reason-
able doubt that some past offense was committed. 52
In certain circumstances, that target might, as a discretionary matter, be cap-
tured rather than killed. 53 Were that to occur, it would make no sense suddenly to
"turn off' the wartime paradigm and switch to thafof law enforcement, providing
all the process associated with criminal procedure. To do so would be the equiva-
lent of telling the nineteen-year-old recruit, "You have legal authority to kill an-
other human being, but if you capture him instead, you had better collect enough
evidence to prove him guilty of a crime in a courtroom." Making it more complex
to capture a person in combat by adding additional obligations could incentivize
killing — ironically and perversely — in the name of human rights. 54
One might conclude that the answer is simply applying the law of war, but that
in turn provides very little regulation and permits indefinite detention with no
readily foreseeable end. Unlike the State-on-State conflict for which the 1949
331
Detention of Terrorists in the Twenty-first Century
Geneva Conventions were written, in the current conflict, combatants are more
difficult to recognize and the "end" of hostilities is anything but easily identified or
predicted. At the end of World War II, more than four hundred thousand enemy
soldiers were incarcerated within the continental United States in a state of indefi-
nite detention, yet all knew that the war and their concomitant detention would
end upon surrender. Enemy soldiers at that time, mostly conscripted, could be re-
leased to return to their former lives. The end of today's conflict, however, will be
far more difficult to identify, both in timing and in circumstance. And instead of
conscripts, al Qaeda is manned by a highly committed volunteer force. When does
this conflict end? When all senior al Qaeda leaders are killed or surr